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Land –
Customary grant – Stool Land -
Breached of terms of grant –
Recovery of Possession -
Perpetual Injunction –
Estoppel - Forfeiture of
the grant of land - Right to
re-enter on the plot - Section
29 of the
Conveyancing Act 1973, NRCD 175
HEADNOTES
It is the
case of the Respondent that the
Appellant who styled himself as
Head pastor of a church, Come
Preach Christ Christian
Fellowship approached him as
chief of Amanfrom and occupant
of Abondwoase Stool for a piece
of land for the purpose of
building a school and a church
in 1990. Acting for and on
behalf of his Stool, the
Appellant was granted a tract of
land. However, it came to his
notice somewhere in 2001, that
the Appellant had demarcated
portions of the land into plots
and was selling to private
developers for residential
purpose. He caused his solicitor
to write to the Appellant to
stop selling portions of the
land as same was given to him
conditionally. At the time the
letter was written, the
Appellant himself was not in the
country but the letter was
received by the church members
and when the Appellant returned,
he came to him with a view to
having the matter settled and
pleaded with him to stop the
court action. All the same,
those to whom portions of the
land had been sold, continued to
build. When he went to the land
to find out the truth, the
Defendant caused his arrest by
the police alleging that he had
gone there with fifteen (15)
macho men to assault him. This
led to his prosecution with some
of his elders, at the end, they
were acquitted and discharged.
The Appellant in his defence
contends that the transaction
between him and the Respondent
was a sale and that the only
obligation on his part was to
build a church and school which
he fulfilled. He said the ¢2,
700,000.00 (Two Million Seven
Hundred Thousand) Cedis he paid
was not a token free but the
purchase price for the land
which turned out to consist of
60 plots, each plot costing
¢45,000.00.
The demarcation and sale of the
plots he continued, was done
with the consent of the elders
of the Respondent. That the
first three plots were sold by
the elders on behalf of the
Appellant. He thus denied any
breach on his part and therefore
counter-claimed At the end of
the trial, Judgment was
delivered in favour of the
Respondent in terms as that by
his conduct the Defendant is
liable to forfeit the land
granted him by the plaintiff
except the area developed by the
Defendant for his school and
denial and the plots the
Plaintiff’s elders sold for the
Defendant Dissatisfied with the
judgment, the Appellant appealed
to the Court of Appeal that
unanimously dismissed the appeal
in its entirely and affirmed the
Judgment of the trial court.
HELD
On the facts
and evidence before the court, a
plea of estoppel will not avail
the Appellant. With the
conclusion of the court that the
Appellant’s conduct rendered him
liable for forfeiture I am of
the view that the Appellant’s
appeal on ground (b) fails as
the court of Appeal fell into no
error in holding that the
Appellant breached a condition
of the grant by the sale of the
plots. In the end the appeal
before us fails and it is for
the reasons assigned herein that
same was dismissed
STATUTES
REFERRED TO IN JUDGMENT
Conveyancing
Act 1973, NRCD 175
CASES
REFERRED TO IN JUDGMENT
Boateng
(No.2) vrs Manu (2) & Another
[2007-8] 111
Komey vrs
Korkor, [3 WALR] 331
Amoabimaa vrs
Okyir [1965] GLR 59
Agyako vrs
Nazir [10 WACA] 277
Sasu vrs
Amua-Sekyi & Anor [2003 2004]
SCGLR 742
Manu v Ainoo
[1976]1 G. L.R. 457.
Warner v Sampson [1958] 1 All ER
314;
Doe d Williams v Pasquali [1793)
PEAKE, 196, N.P.;
Doe d. Calvert v Frowd (1828), 4
BING.557.
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England Volume 27 (
Fourth Edition)
Barron’s
Law Dictionary, 5th
Edition
Ghana Land
Law And Conveyancing (2nd
edition) by BJ da Rocha and CHK
Lodoh
Ghana Land
Law, Prof. K. Bentsi-Enchil
DELIVERING
THE LEADING JUDGMENT
OWUSU, JSC.
COUNSEL
AUGUSTUS ANANE-QUEBAH FOR THE
RESPONDENT.
A. A. SOMUAH ASAMOAH FOR THE
APPELLANT.
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
OWUSU, JSC.
On 18/05/11,
the court unanimously dismissed
the Appellant’s appeal. We now
proceed to assign reasons for
the dismissal.
This is an
appeal against the judgment of
the Court of Appeal, Kumasi:
Coram: Mariama Owusu
(Presiding), F. G. Korbieh and
Irene Danquah JJA, delivered on
29th January, 2010.
The
plaintiff/Respondent herein had
by a writ of summons accompanied
by a statement of claim issued
in the High Court, Kumasi,
claimed against the
Defendant/Appellant herein the
following reliefs:
(a)
Declaration of title to all that
15 acre piece and parcel of
building land compassing situate
and lying at Amanfrom near
Kumasi and bounded by the
properties of Abondwoase
Stool
Land.
(b)
Declaration that the Defendant
is liable to forfeit the land
described in paragraph (a) supra
on grounds that the Defendant
has
breached the terms of the grant
of the land described in
paragraph (a) supra to him.
(c)
Order for
Recovery of Possession of
the said 15 acre-parcel of land.
(d)
Order of
Perpetual Injunction against
the Defendant herein whether by
himself or his servants, agent’s
workmen or assign from in anyway
interfering with the Plaintiff’s
possession occupation and
enjoyment of the said plots.
The
Appellants, resisting the
Respondent’s claim, entered
appearance and filed a statement
of Defence and counter claimed
for:
(a)
Declaration of title to and
recovery of possession of all
that 15.4 acre piece and parcel
of building land situate and
lying at Amanfrom near Kumasi
and bounded by the properties of
Abondwoase Stool.
(b)
Declaration that the defendant
has complied with all the terms
of the grant.
(c)
An order of perpetual injunction
to restrain the plaintiff, his
agents, servant, workmen, etc.
or any person claiming fitle
through him from interfering
with the defendant’s quiet
enjoyment of the said land.
This
statement of Defence and
counter-claim was later amended
with leave of the court granted
on 26/02/07.
At the end of
the trial, Judgment was
delivered in favour of the
Respondent in terms as
follows:
“(a)
Declaration that by his conduct
the Defendant is liable to
forfeit the land granted him by
the plaintiff except the area
developed by the Defendant for
his school and denial and the
plots the Plaintiff’s elders
sold for the Defendant.
(b) An
Order of Possession of all other
within the fifteen-acre area
originally granted except as
specified above.
(c) Perpetual Injunction
restraining the Defendant by
himself his agents, servants and
privies and all claiming through
him from having anything to do
with the land. These should
vest in the Plaintiffs. I award
costs of GH¢1,000.00 for the
Plaintiff.
Dissatisfied
with the judgment, the Appellant
appealed to the Court of Appeal
on the omnibus ground that the
judgment is against the weight
of evidence.
The Court of
Appeal, unanimously dismissed
the appeal in its entirely and
affirmed the Judgment of the
trial court.
Aggrieved and
dissatisfied with that Judgment,
the Appellant is before this
court on appeal on the grounds
that:
(a)
The Court of Appeal did not
adequately consider the defence
and counterclaim of the
Defendant/Appellant/Appellant.
(b)
The Court of Appeal erred in
holding that the
Defendant/Appellant/Appellant
had committed a breach of the
terms or conditions of the grant
of the land by the
Plaintiff/Respondent/Respondent
and that the sale of the plots
was illegal.
(c)
The Court of Appeal erred in its
conclusion that the letter from
the Respondent’s lawyer
constituted legal notice and
satisfied the requirements of
Section
29 of the Conveyancing Act 1973,
NRCD 175 for
forfeiture of the grant of land
to the
Defendant/Appellant/Appellant.
(d)
The Court of Appeal erred in
dismissing the
Defendant/Appellant/Appellant’s
appeal in its entirety and
affirming the judgment of the
trial High Court.
(e)
The Court of Appeal erred in
dismissing the
Defendant/Appellant/Appellant’s
counterclaim as being without
merit.
(f)
The Court of Appeal erred in
awarding costs against the
Defendant/Appellant/Appellant.
(g)
Additional grounds of appeal may
be filed upon receipt of the
Record of Appeal.
THE
RESPONDENT’S CASE
It is the case of the Respondent
that the Appellant who styled
himself as Head pastor of a
church, Come Preach Christ
Christian Fellowship approached
him as chief of Amanfrom and
occupant of Abondwoase Stool
for a piece of land for the
purpose of building a school and
a church in 1990.
Acting for and on behalf of his
Stool, the Appellant was granted
a tract of land measuring about
15.4. acres for a token fee of
¢2,700,00.00.
According to him, in addition to
the payment of the token fee,
the Appellant was to provide the
Amanfrom Community with
Electricity and Pipe-borne
water. He mobilized his subjects
to offer free communal labour
whenever the Appellant worked on
or cleared the land.
However, it came to his notice
somewhere in 2001, that the
Appellant had demarcated
portions of the land into plots
and was selling to private
developers for residential
purpose. He caused his solicitor
to write to the Appellant to
stop selling portions of the
land as same was given to him
conditionally.
At the time the letter was
written, the Appellant himself
was into in the country but the
letter was received by the
church members and when the
Appellant returned, he came to
him with a view to having the
matter settled and pleaded with
him to stop the court action.
All the same, those to whom
portions of the land had been
sold, continued to build. When
he went to the land to find out
the truth, the Defendant caused
his arrest by the police
alleging that he had gone there
with fifteen (15) macho men to
assault him. This led to his
prosecution with some of his
elders, at the end, they were
acquitted and discharged.
He therefore instituted the
action for the reliefs endorsed
on his writ of summons.
THE APPELLANT’S CASE
The Appellant in his defence
contends that the transaction
between him and the Respondent
was a sale and that the only
obligation on his part was to
build a church and school which
he fulfilled. He said the ¢2,
700,000.00 (Two Million Seven
Hundred Thousand) Cedis he paid
was not a token free but the
purchase price for the land
which turned out to consist of
60 plots, each plot costing
¢45,000.00.
The demarcation and sale of the
plots he continued, was done
with the consent of the elders
of the Respondent. That the
first three plots were sold by
the elders on behalf of the
Appellant. He thus denied any
breach on his part and therefore
counter-claimed for the reliefs
already set out in his
counter-claim.
Before this court, he is asking
for the following reliefs –
i.
“That the Judgment of the Court
of Appeal, Kumasi dated 29th
January, 2010 dismissing the
Defendant/Appellant/Appellant’s
appeal affirming the judgment
of the trial High Court, Kumasi
and awarding costs against the
Defendant/Appellant/Appellant be
set aside”
ii.
That judgment be entered for the
Defendant/Appellant/Appellant on
both his appeal and
counter-claim.
iii.
Any other order as the Supreme
Court will consider fit to make.
Arguing the
appeal, counsel sought leave of
the court to argue ground (b)
first. This ground attacks the
Court of Appeals holding that
the Appellant breached the terms
or conditions of the grant of
the land and that the sale of
the plots was illegal.
Counsel
sought to identify the terms or
conditions of the grant. He set
them out from the statement of
claim as –
(a)
The payment of ¢2,700,000.00
(b)
The provision of pipe-borne
water amenities for the Amanfrom
community.
(c)
The provision of electricity for
the Amanfrom community and
The
Respondent from the statement of
claim admitted that the
¢2,700,000.00 was paid and it
was therefore his contention
that the provision of
electricity and pipe-borne water
for the community were no
conditions for the grant.
It is counsel’s further
submission that the land was
acquired for the construction of
a school and a church and that
the Appellant did construct the
church and the school.
In reply, counsel for the
Respondent referred to Ex “1”,
the allocation paper issued to
the Appellant on acquisition of
the land and submitted that the
Appellant breached the purpose
for which the land was acquired.
Ex “1” is reproduced from the
record as follows:
“AMANFROM STOOL LANDS
Plot A Block 12
Amanfrom Kwasi/Ash.
Date: 20THFEBRUARY,
19
PLOT ALLOCATION
PLOT A BLOCK 12
PLOT NO. 1 – PLOT NO. 64 at
Amanfrom.
I the undersigned acting for and
on behalf of Amanfrom Stool have
allocated the above mentioned
plot to C. P.C. CHRISTIAN
FELLOWSHIP.
The Allocation is made subject
to the following conditions.
1.
That, the Allottee will pay the
ground rent involved.
2.
That the Allottee will within
Two years starting from the date
above this allocation is issued
complete the building on the
plot.
3.
That the Amanfrom Stool reserves
the right
to re-enter on the plot if
any of the above conditions is
not complied with and that the
Allottee will then has no right
of claim for replacement,
expenses, compensation or
recourse to any litigation.
SIGNED BY:
NANA BEDIAKO ATWERE”
From the allocation paper the
Appellant was to complete
construction of the church
building and the school within
two years from the date of the
allocation i.e. 20/02/90.
The Respondent instituted the
action on 23/01/03 when
according to him it came to his
notice that the Appellant was
selling the plots to private
developers for residential
purpose in 2001.
The reason for the institution
of the action was not
essentially failure to provide
electricity and pipe-borne water
to Amanfrom community. He had
caused his lawyer to write to
the Appellant to warn him about
his conduct i.e. selling of the
plots to private developers.
This letter was not in evidence
but the Appellant did not
dispute receiving such a letter.
Under cross-examination this is
what he told the court
“(A) I went to Lawyer Awuah
because initially I was in good
terms with your client and he
had called me when I came back
from overseas and had gone to
him and he had pointed out that
Lawyer Awuah was his lawyer so I
went to lawyer Awuah trying to
solve the case amicably.
(Q) What case was there
that you were solving amicably?
(A) That was the initial
steps he took to re-claim the
land.
(Q) What case?
(A) It was over this same
case for which we sit here. He
had already made lawyer Awuah
write to us in my absence that
because of the sale of the land
he wanted his land back so on my
return I went to see lawyer
Awuah that was it.
In his evidence in chief, the
Respondent told the court the
subject matter of the letter was
the sale of the land. To a
question, “what was the subject
matter of the letter?” The
answer was “the subject matter
was that, the land that he was
selling, he should put a stop to
it.”
His evidence is that the
conditions for the provision of
electricity and pipe-borne water
were verbal. Denying that there
was any such obligation, the
Appellant told the court that
“being part of the community and
being church members we had said
that whatever we could be of
extra (sic) blessing to the
community, we would and we
graciously supplied the town
with electricity when we had the
big plant - - - - This the
Respondent however denied.
What is the nature of the
transaction between the parties?
The trial court had found from
the evidence that the
transaction was a
customary
grant and this finding was
not disturbed on appeal. Indeed
in his statement of case before
this court, counsel from the
Appellant accepts that the grant
by the Respondent to the
Appellant was a customary
grant. This is what counsel
said –
“The undisputed evidence on
record is that the grant by the
Respondent to the Appellant was
a customary grant.” - - -
If the grant is a customary
grant, in this case not a
leasehold, will the provisions
of the Conveyancing Decree and
for that matter section 29 of
the Decree (Act) N. R. C. D. 175
be applicable? Counsel has
argued that even if for purposes
of argument it is conceded that
there was a breach for which the
Respondent could exercise a
right of re-entry, that right
had not been properly exercised
in accordance with section 29 of
the Decree (Act).
The said section reads as
follows:
“(1) A right of re-entry or
forfeiture under any provision
in a lease for a breach of any
covenant, condition or agreement
in the lease shall not be
enforceable, by action or
otherwise, until –
(a)
the lessor serves on the lessee
a notice;
i.
specifying the particular breach
complained of;
ii.
if the breach is capable of
remedy, requiring the lessee to
remedy the breach, and
iii.
(except where the breach
consists of a non-payment of
rent) requiring the lessee to
make reasonable compensation in
money for the breach; and
(b)
the lessee has knowledge of the
fact that such notice has been
served;
and the lessee fails, within a
reasonable time thereafter, to
remedy the breach, if it is
capable of remedy, and (except
where the breach consists of a
non-payment of rent) to make
reasonable compensation in
money, to the satisfaction of
the lessor, for the breach …
(3) this
section applies notwithstanding
any provision to the contrary
in the lease.”
“A Leasehold is an interest
granted by the owner of land to
a person to occupy his land for
a specified period. A leasehold
interest is a creation of the
common law and not customary
law.”
See Ghana
Land Law And Conveyancing (2nd
edition) by BJ da Rocha and CHK
Lodoh p. 5
The transaction between the
parties is not covered under the
Conveyancing Decree (Act) N. R.
C. D. 175. Section 29 of the
Act therefore has no application
in this suit. We do not
therefore agree with the Court
of Appeal on its holding that
the letter written by the
Respondent’s lawyer to the
Appellant constituted notice
within the meaning of section 29
of the Conveyancing Decree (Act)
N. R. C. D. 175.
Section 3(1) (h) exempts any
transfer or contract for the
transfer of an interest in land
by oral grant under customary
law from writing to give effect
to sections 1 and 2 of the
Decree (Act).
3(1) states that sections 1and 2
shall not apply to any transfer
or contract for the transfer of
an interest in land which takes
effect –
“(a) - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - -
- - - - - - - - -
(h)
by oral grant under customary
law.”
Whatever
interest that the Respondent
granted the Appellant was not
reduced into writing. It was an
oral customary grant and
therefore subject to customary
law.”
Whatever
interest that the Respondent
granted the Appellant was not
reduced into writing. It was on
oral customary grant and
therefore subject to customary
law.
Ex “1” was
merely an allocation paper which
by itself does not constitute
title. In the case of
BOATENG
(NO.2) VRS MANU (2) & Another
[2007-8] 1117, it was held
inter alia “that an allocation
paper is only an initial process
to evidence that land has been
acquired by an individual or
corporation body. That kind of
paper cannot by itself represent
the acquisition - - - - - - - -
- - - - - - - - - - - - - - - -
- -”
That notwithstanding, in
KOMEY VRS
KORKOR, [3 WALR] 331 a
caretaker of Asere Stool Land
had granted the usufructuary
interest (i.e. a determinable
estate) in an area of the stool
land to the plaintiff, a stool
subject, and later purported to
make a similar grant of the same
area to the defendant. The
plaintiff thereupon commenced
action for a declaration of his
title and damages for trespass.
It was asserted by the defendant
that the original grant to the
plaintiff had been for the
purpose of building and that as
a number of years had elapsed
without the plaintiff commencing
any building, he was deemed, by
custom, to have forfeited his
estate in the land which thereby
reverted to the stool.
The court held as follows:
(i)
On the evidence the re-grant of
the land to the defendant was
made without prior notice
being given by the stool to the
plaintiff, who was in
possession, of the intention of
the stool to take re-possession
of the land by forfeiture for
breach of condition.
(ii)
Where a grant of land is made by
a stool to a stool-subject for a
determinable estate, the stool
grantor may cause forfeiture of
the grant for breach of
condition - - - - - - - - -
(iii)
Where a determinable estate is
created by grant by a stool to a
stool-subject for building
purpose this is a condition of
the grant the breach of which
will entitle the stool to cause
forfeiture of the grant. If a
time limit within which the
building is to be erected is not
specified in the grant, then the
grantee will be deemed to be in
breach of condition if he fails
to build within a reasonable
length of time - - - - - - - - -
”
This case has
been cited just to establish the
concept of forfeiture on breach
of condition even under
customary law. The facts are not
on all fours with the case under
consideration.
The case of
AMOABIMAA
VRS OKYIR [1965] GLR 59,
also touches on forfeiture. The
court however held that
forfeiture, is not automatic.
The offender must be duly
notified of the breach and where
possible be given the
opportunity to remedy the
breach.
The holder of
a customary freehold title or
interest forfeits his title or
interest when he denies the
title of his grantor.
The Court of
Appeal per Korbieh JA. quoting
from
Ghana Land Law, an
exposition, Analysis and
critique by
Prof. K.
Bentsi-Enchil and relying on
same concluded that the
Appellant is liable to forfeit
the property, subject matter of
the grant. Writing on the topic
“forfeiture” under
customary law, the late
professor of blessed memory had
this to say:
“A leading
condition of forfeiture in those
situations is conduct on the
part of the licensee or tenant,
amounting to denial of the title
of his licensor or landlord. An
attempt to alienate such land by
the licensee or tenant is
regarded as amounting to such
conduct.”
It is note
worthy that in the present case,
the Appellant had not attempted
to sell but actually sold, as he
himself admitted, fifteen (15)
plots of the land.
Counsel for
the Appellant had argued that
the only conditions which the
Appellant was obliged to fulfill
from the Allocation paper was
the building of the school and
the church.
This had to
be done within two (2) from the
date of the allocation, failing
which the Respondent reserved a
right of re-entry.
Admittedly,
the allocation paper does not
speak of selling plots from the
land granted the Appellant.
That conduct of the Appellant
without any reference to the
Respondent amounts to a
challenge to and denial of the
Respondent’s title. The breach
is fundamental as it defeats the
purpose for which the land was
granted.
Any dealings
with the land, unrelated to the
purpose for which the land was
granted, should entitle the
grantor to exercise his right of
forfeiture.
The letter
written by the Appellant’s
lawyer constituted sufficient
notice to register his
displeasure and disapproval of
the sale of the plots by the
Appellant. Following receipt of
that letter, the elders of the
church approached him and from
the record according to the
Respondent, this is what
transpired –
“I told them
that what the Osofo is doing is
that he’s made a fool out of us,
for I gave him the land to build
a church and a school even the
school he’s not built, and even
the church I made announcement
for the community to help build
the church, so if he is selling
the plot then he called me an
idiot so because of that, that I
went to lawyer Awuah to write to
them say that, what they are
doing, they should stop it.”
At that time
the Appellant was out of the
country but on his return, he
went to see the Respondent and
told him to stop the court
action. This is his evidence:
“He said I
should stop the court action,
and my response was that I did
also (sic) want litigation, so
should let us resolve the issue
peacefully. After that people
still went ahead to build.”
It was when
he went to the land to ascertain
the truth and left a message for
the Appellant for them to meet
lawyer Awuah for a date to be
fixed for settlement that the
Appellant caused his arrest,
framing a false charge of
sending macho-men to go and kill
him (Appellant) against him.
This resulted in his arrest and
subsequent prosecution, at the
end of which he was acquitted
and discharged.
The
Respondent, had sufficiently
notified the Respondent of the
breach and given him every
opportunity to remedy it but
from the record, the Appellant
would not remedy the situation
and for that reason the
situation did not call for a
second notice as the court held
in KOMEY VRS KORKOR already
referred to.
It is the
submission of counsel for the
Appellant that the finding by
the learned trial Judge that
“so yes, the plaintiff through
his elders sold part of the land
on behalf of the
Defendant . . .” raises
estoppel against the Respondent
who is consequently estopped
from alleging a breach against
the Appellant?
By this
submission, counsel is urging
upon the court that by the sale
of part of the land on behalf of
the Respondent he is precluded
by his act or conduct from
asserting a right (of
forfeiture) which he otherwise
would have had.
Counsel
concedes that estoppel was not
pleaded as the rules require but
relying on the authority of
AGYAKO
VRS NAZIR [10 WACA] 277
submits that on the facts and
evidence before the court,
estoppel is clearly made out and
the other party would not be
taken by surprise so failure to
specifically plead it is not
fatal to a consideration of the
plea by the court.
In that case
the court on facts that appeared
on the record stated:
“It is of
course, a rule of pleading that
estoppel must be specifically
pleaded. In this case there
were no pleadings and
consequently no plea of
estoppel,
but we are of opinion that in
the circumstances that should
not prevent the
plaintiff-Appellant from
succeeding upon what is on
obvious answer to the point
decided against him in the court
below.”
The Supreme Court in the case of
SASU VRS
AMUA-SEKYI & Anor [2003 2004]
SCGLR
742
re-stated the position of the
law per Bamford-Addo JSC (as she
then was) as follows:
“But it has been held in some
cases, correctly, that failure
to plead estoppel per rem
judicatem as required under
order 19 r 16 of LN 140A can be
cured by evidence on record such
as would make the plea obvious .
. .”
In his judgment in Sasu vs
Amua-Sekyi & Anor. (supra), His
Lordship Dr. Date-Bah JSC at
page 771 of the report also
stated the point thus:
“The instant case thus
establishes that where, on the
facts, an estoppel, which was
not pleaded, should nonetheless
be obvious to the party against
whom it is raised, the court may
ignore the failure to plead it
and give effect to it. The
justification for this line of
thought is that the party
affected is not likely to be
surprised where the evidence on
record makes the estoppel
obvious. As Brooke J says
above: “the object of the rule
is to prevent the other party
being taken by surprise and to
give him full opportunity of
meeting the plea.” Where,
therefore, the facts on record
show that the other party could
not have been taken by surprise,
the rationale for the rule falls
away and an exception may
legitimately be made. I am
therefore inclined to agree with
Twumasi JA that on the facts of
this case, the first
respondent’s failure to plead
estoppel per rem judicatam
should not preclude him from
relying on it …”
These cases cited in support of
counsel’s submission, I am
afraid are distinguishable from
the case before us. The
emphasis in those cases is
where, on the facts, the plea is
obvious to the party against
whom it is raised, and therefore
no surprise will be sprung on
him.
In this case, on what facts is
the plea of estoppel being
raised? The Appellant’s case is
that, even if the selling of the
plots constitutes a breach, the
Respondent is estopped by his
conduct from exercising his
right of re-entry because he per
his elders, led the Appellant’s
elders to sell three of the
plots.
The unchallenged facts are that
the Respondent himself was not
in the country when the plots
were sold allegedly by his
elders. He did not complain on
his return so he might be deemed
to have acquiesced in the sale.
What is significant however is
that he Appellant’s members of
the church had sought for the
Respondent’s consent and
approval for the sale of the
plots because they needed money
when the Appellant was away from
the country. The parties are
not agreeable as to what the
money was needed for. The
evidence of the members of the
church is that they needed the
money to purchase a school bus
whereas the Respondent’s elders
evidence is that they were told
the money was needed to get the
Appellant out of trouble in
which he was involved.
Having sought permission and
approval, the Appellant
acknowledged the title of the
Appellant in the sale of the
plots.
With regard to the sale of the
remaining thirteen (13) plots,
no such consent of the
Respondent was sought for and
such a conduct as has already
been stated, amounts to a denial
of the Appellant’s title.
On the facts and evidence before
the court, a plea of estoppel
will not avail the Appellant.
With the conclusion of the court
that the Appellant’s conduct
rendered him liable for
forfeiture I am of the view that
the Appellant’s appeal on ground
(b) fails as the court of Appeal
fell into no error in holding
that the Appellant breached a
condition of the grant by the
sale of the plots.
Ground (c) succeeds to the
extent that the Court of Appeal
erred in its conclusion that the
letter from the Respondent’s
lawyer constituted legal notice
and satisfied the requirements
of section 29 of the
Conveyancing Act of 1973,
(N.R.C.D. 175)
Grounds (a), (d), (e) and (f)
were argued together. These
grounds in substance are against
the dismissal of the Appellant’s
appeal in its entirety and
failure of the Court of Appeal
to consider the defence and
counter-claim of the Appellant.
The Court of Appeal adequately
considered the counter-claim and
rightly pronounced on it. The
court fell into no error when
for reasons stated therein, it
dismissed the counter-claim as
unmeritorious and the appeal in
its entirety.
Grounds (a), (d), (e) and (f)
are also dismissed.
Having concluded that the
Conveyancing Decree (Act) is not
applicable, the Appellant’s
relief against forfeiture is
misplaced.
In the end the appeal before us
fails and it is for the reasons
assigned herein that same was
dismissed.
(SGD) R. C. OWUSU [MS].
JUSTICE OF THE SUPREME COURT
GBADEBGE JSC:
I agree with
the judgment of my worthy
sister Rose Owusu JSC but wish
to add a few words of my own on
the issue of forfeiture in
respect of which the appellant
invites us to invalidate the
decision of the Court of Appeal
on the ground of noon-compliance
with the requirements of section
29 of the Conveyancing Act, NRCD
175 of 1973( hereinafter
conveniently referred to as “the
Act”).The appellant has argued
strenuously that the respondent
not having complied with the
requirements of section 29.1 of
the Act, the order of
forfeiture is wrong and must be
set aside. The complaint
relating to the order of
forfeiture was contained in
ground (C) of the notice of
appeal that reads as follows:
“The
Court of Appeal erred in its
conclusion that the letter from
the
Respondent’s lawyer
constituted legal notice and
satisfied the
requirements of Section 29 of
the Conveyancing Act, 1973, NRCD
175 for
forfeiture of the grant of land
to the
Defendant/Appellant/Appellant.”
Section 29
of the Act provides as
follows:
(1)
A right of re-entry or
forfeiture under any provision
in a lease for a breach of
any covenant, condition or
agreement in the lease shall
not be enforceable, by
action or otherwise, until-
(a)
the lessor serves on the
lessee a notice:
(i)
specifying the particular breach
complained of;
(ii) If the
breach is capable of remedy,
requiring the lessee to
remedy the
breach; and
(1)
(except where the breach
consists of a non-payment of
rent0 requiring the lessee to
make reasonable compensation in
money for the breach; and
(b)
The lessee has knowledge of the
fact that such notice has been
served;
And the lessee fails, within a
reasonable time thereafter, to
remedy the breach, if it is
capable of remedy, and (except
where the breach consists of a
non-payment of rent0 to make
reasonable compensation in
money, to the satisfaction of
the lessor, for the remedy.”
Sub-section 3 of section 29 of
the Act, provides that the
protection granted to lessees
under section 29 (1) of the Act
applies notwithstanding anything
to the contrary in the lease.
This sub-section seeks to avoid
situations in which parties may
by a stipulation in the lease
waive the said provisions. In
his submissions to the Court,
the appellant contends that
since the respondent did not
specifically serve a notice in
compliance with section 29(1) of
the Act, the order of forfeiture
is wrong. For this reason, the
appellant invites us to
invalidate the order of
forfeiture that was affirmed by
the Court of Appeal. This
contention loses sight of the
fact that the grant on which
this action is based is an oral
grant under customary law as
provided for in sections 1, 2
and 3 of the Act. The
rationale for this appears to be
that writing is not of the
essence of a customary
transaction and that although
writing may add to the grant
under customary law, its absence
cannot derogate from the
validity of the grant. In the
case before us the only evidence
offered by the parties beyond
the grant which was made under
customary law as indeed the
learned trial judge rightly
found is the document referred
to as the allocation paper,
Exhibit 1.
That document mentions only
two incidents of the grant- the
payment of rent and the period
within which the appellant is to
construct a building on the land
with a right of re-entry to be
exercised by the respondent in
default. There is no plan
attached as required by law and
no reference is made to a
clearly defined area. The said
exhibit , in my thinking does
not comply with the requirements
of section 4 of the Act
regarding customary grants in
that it has not been certified
by a registrar of a court
exercising jurisdiction in the
area where the land is
situated. It being so, exhibit 1
cannot have the attributes that
the Act places on documents
which satisfy section 4 of the
Act in terms of section 5 of the
Act. The said document not
having satisfied the
requirements of the law cannot
be called in aid by the
appellant.
That aside, even if exhibit 1
were to be construed as spelling
out the conditions of the grant,
the act on which the respondent
relied to sue out the action is
one that falls outside the
stated conditions in the
document, it being derived from
the conduct of the appellant in
selling the lands contrary to
the purpose for which he had
acquired it-construction of a
church and school for the
community. In such a situation,
the appellant’s conduct amounts
to fundamentally changing the
character of the transaction and
entitles the respondent as the
grantor for its effect is to
deny his title as by his conduct
the appellant had repudiated the
title of his landlord. The
appellant’s conduct clearly
shows that he was no longer
acting under the grant he
obtained from the respondent but
as an owner in his own right.
The evidence of a previous sale
being done with the respondent’s
approval is a clear indication
that in dealing with the land by
way of sale without reference to
his grantor, the appellant was
denying his title to the land.
Accordingly, by bringing an
action to enforce forfeiture,
the respondent was not acting
under any condition attached to
the grant but acting by
operation of law as an owner
whose title has been denied. It
being so, the provisions of
section 29(1) of the Act are
inapplicable. The evidence on
record discloses that the
appellant was given the
opportunity by the respondent to
mend his ways but he would not
and therefore by bringing the
action, the respondent acted
rightly.See: MANU v AINOO
[1976]1 G. L.R. 457.
The right of forfeiture that the
respondent took out the writ to
enforce is one available to him
at customary law and the
provisions of the Act not having
clearly stated that rights
existing at customary law ire to
be subject to its provisions,
the respondent in our thinking
could enforce his customary law
right to bring to an end a
conduct by his grantee that has
the effect of denying his title
to the land without first having
to comply with the requirements
of section 29(1) of the Act.
See: (1) WARNER v SAMPSON
[1958] 1 All ER 314; (2)
DOE d WILLIAMS v PASQUALI
[1793) PEAKE, 196, N.P.;
(3) DOE d. CALVERT v
FROWD (1828),
4 BING.557.
It is observed further in
relation to section 29(1) of the
Act, that the denial of
title of the landlord by the
appellant is a conduct that is
incapable of remedy and
therefore the right to its
enforcement is one that arises
by operation of law and not
under a stipulation in a lease.
Any conduct that amounts to a
denial of title of ones grantor
as unfolded in the case before
us has the effect of bringing
the relationship of landlord and
tenant to an end. It being so,
there is strictly speaking, no
lease or grant under which there
might be stipulations or
conditions that having been
breached require to be remedied
within the contemplation of
section 29 (1) of the Act. In
his judgment in the WARNER
case ( supra) ASHWORTH J
at page 315, pronounced on the
applicability of section 146 of
the Law of Property Act, 1925 (
the equivalent of our section 29
) thus:
“It appears to me plain
beyond argument that it would
have been quite impossible for
the landlord in this case to
comply with those conditions
and, moreover, the section does
not contemplate the application
of those conditions to such a
situation as that of the present
case. In my judgment, this is
not forfeiture under any
proviso, or stipulation in a
lease; it is a forfeiture which
arises by operation of law.”
It looks quite unreasonable that
a tenant whose conduct amounts
to a denial of his landlord’s
title and therefore brought the
relationship of landlord and
tenant to an end can turn round
to say that the action by the
landlord against him to forfeit
the tenancy is derived from an
agreement which by virtue of his
voluntary conduct is no longer
in existence. The conduct of
the appellant in selling the
land to others for residential
purposes notwithstanding
protestations from the
respondent is an act that is
fundamentally different from
what he acquired the land for
and quite frankly fraudulent.
That conduct in my view denies
the title of the landlord,
bringing the grant to an end
with the result that there is no
lease or tenancy to which the
provisions of section 29(1) that
refer to “A right of re-entry
or forfeiture under any
provision in a lease………….”
are applicable.
Although the decision in the
WARNER case ( supra)on this
point was set aside on appeal
and reported in [1959] 1 All ER
120, the Court of Appeal in
reaching the said conclusion
thought that the facts on which
the allegation of forfeiture was
based did not amount to a denial
of title such as to render the
provisions of section 146 of the
Law of Property Act inapplicable
, it appears that the decision
did not seek to overrule
previous decisions to the effect
that where there has been a
repudiation of title of the
landlord, there is no need to
serve a notice in compliance
with section 29 (1) of the Act.
See generally Case No’s
6621-6662 in the ENGLISH AND
EMPIRE DIGEST, Volume 31(2)
of Replacement Issue of 1973 at
pages 801-804. The same position
was asserted by the learned
authors at paragraph 440 page
344 in Halsbury’s Laws of
England Volume 27 ( Fourth
Edition) as follows :
“The statutory provisions do not
apply to forfeiture for
non-payment of rent, or
probably, to forfeiture by
reason of denial by the tenant
of the landlord’s title.”
One aspect of the ground of
appeal that concerns section 29
of the Act is that the grant to
the appellant was not expressed
to be of a specific duration and
appears to be for an indefinite
period and as such it does not
appear that it comes within the
designation of a “lease “such as
to have the provisions of
section 29 of the Act on which
so much reliance is placed of
relevance to the exercise by the
respondent of his right to bring
the grant to an end by the
action herein. In the Oxford
Advanced Learner’s Dictionary
(International Student’s Edition
(7th Edition) at page 841, the
noun lease is defined as
follows:
“legal agreement that allows
you to use a building, a piece
of equipment or some land for a
period of time usually in return
for rent.”
This definition of the word
“lease” finds support in
Barron’s Law Dictionary,
5th Edition at page
289 as follows:
“an agreement whereby one
party (called the landlord or
lessor) relinquishes his right
to immediate possession of
property while retaining
ultimate legal ownership.
Ordinarily when a Lease is made
we find an agreement by the
owner lessor to turn over
specifically described premises
to the exclusive possession of
the lessee for a definite period
of time and for a consideration
commonly called rent.”
For these reasons, the ground of
appeal that touches section 29
of the Act fails and
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL;
AUGUSTUS ANANE-QUEBAH FOR THE
RESPONDENT.
A. A. SOMUAH ASAMOAH FOR THE
APPELLANT.
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