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2
Estoppel – Feeding the estoppel
– Principle of, – Owner
wrongfully granting for
residence land zoned for
sanitation – Land subsequently
rezoned for residence – Owner
estopped from disputing validity
of grant.
The respondent’s predecessor in
title granted the appellant the
disputed land but when the
appellant sought to register the
grant, the Asantehene’s land
office declined the registration
allegedly on the instruction of
the respondent. The appellant
protested to the respondent who
demanded a fresh ‘aseda’ for
another plot. The appellant then
instituted an action against the
respondent for declaration of
title to the disputed land,
damages for trespass and for
perpetual injunction against the
respondent. The respondent
denied the grant and
counterclaimed for a declaration
of title to the disputed land.
The trial judge dismissed the
appellant’s claim and entered
judgment for the respondent upon
his counterclaim. There was
evidence on record that the
respondent’s predecessor in
title had in fact granted the
disputed land to the appellant
but that the area was then zoned
for sanitary purposes;
subsequently it was zoned for
residential purposes. On appeal
to the Court of Appeal,
Held:
By the principle of feeding the
estoppel, where a man conveyed
or demised land in which he had
no legal estate or any interest
whatsoever, he estopped himself
from disputing the validity of
such grant or demise. However,
the subsequent acquisition of
interest by the grantor inured
not to his benefit, but to the
benefit of the grantee. In the
instant case the respondent’s
predecessor in title purported
to convey a building plot to the
appellant which plot was in
actual fact zoned for sanitary,
not residential purposes. The
respondent was estopped from
denying the validity of the acts
of his predecessor in title. The
subsequent rezoning of the land
for residential purposes clothed
the appellant with the legal
estate in the land. The trial
judge was in error and his
judgment would be set aside and
judgment entered for the
appellant.
Cases referred to:
Cuthbertson v Irving
[1859] 4 H & N 742, 28 LJ Ex
306, 33 LTOS 328, 5 Jur NS 740,
31(2) Digest (Reissue) 595.
Webb v Austin
[1844] 7 M & G 701, 8 Scott NR
419, 13 LJCP 203, 3 LTOS 282, 21
Digest (Repl) 363.
Rajapaske v Fernando
[1920] AC 892, [1920] All ER Rep
Ext 832, 89 LJPC 159, 123 LT
482, PC.
APPEAL against the judgment of
the circuit court.
LUTTERODT JA.
On 29 January 1976, Nana Kwabena
Duro, in his capacity as Odikro
of Yenyawaso and the person
authorised to allocate Yenyawaso
building plots, allocated plot
No 7 Block III to the
plaintiff-appellant (whom I
shall hereafter refer to as “the
appellant”) and issued her with
an allocation paper. She
acquired this plot by a
customary grant; in
consideration of the allocation,
she paid a customary aseda of
one thousand and twenty-one
cedis plus one full bottle of
schnapps.
Sometime later, on her return
from her sojourn outside this
country, she sought to register
the grant. The Asantehene’s land
office refused to accept the
allocation paper for
registration on the ground that
the defendant-respondent
(referred to hereafter as “the
respondent”) had directed them
not to accept the document. When
she went to the respondent to
protest about what she thought
was an unlawful interference
with her rights, the latter
requested her to provide a fresh
“aseda” for an entirely new
plot. His conduct showed that he
was denying her title to the
said plot of land.
She thus caused a writ to be
issued for the usual reliefs of
declaration of title and damages
for trespass as well as for the
ancillary relief of permanent
injunction. The respondent,
among other things, denied that
the subject matter was at any
point in time ever allocated to
appellant and, in turn,
counterclaimed for a declaration
of title to the disputed plot.
By a judgment dated 17 March
1983, His Honour Piesare
dismissed the appellant’s claim
and entered judgment for the
respondent upon his
counterclaim.
It is against this judgment that
the appellant has appealed and
earnestly sought that we set
aside the trial court’s
decision. The one additional
ground upon which the appeal was
argued reads as follows:
“The trial judge fell in error
by holding that the grant to the
plaintiff was null and void.
Even though at the time of the
said grant the land was zoned as
a sanitary area this land was
subsequently zoned for
residential purposes. The
finding of the court has
occasioned for the appellant a
substantial miscarriage of
justice.”
The learned trial judge did find
as a fact that the late Nana
Duro did indeed allocate the
plot No 7 to the appellant.
Quite naturally, the appellant
is very happy with this finding
for the respondent has by the
paragraph 4 of his defence
alleged that this plot was never
allocated to the appellant. The
appellant therefore has no
quarrel with this finding. Her
grievance lay with the trial
judge’s finding that because the
plot allocated to her was zoned
for sanitary and not residential
purposes, the purported grant
was null and void.
The argument of appellant
counsel is that this holding was
clearly erroneous in so far as
the evidence clearly shows that
subsequently the plot was
rezoned into a residential plot.
Consequently by operation of
law, even if the original grant
was null on the ground that the
grantors had no vacant
residential land to pass, by the
subsequent rezoning, title to
that piece of land would become
vested in the appellant. It is
the contention of appellant
counsel that in these
circumstances, the trial judge
ought to have held that the
subsequent rezoning served to
vest appellant with title.
In reply respondent counsel
urged us that because the
evidence does show that plot 7
formed part of an area zoned for
sanitary purposes, and in any
case because the consent and
concurrence of the Lands
Commission was never obtained as
was required under section 47 of
the Provisional National Defence
Council (Establishment)
Proclamation 1981 (PNDCL 42),
the appellant never acquired any
valid title to the plot 7.
To my mind therefore, from the
arguments, the question which
arises for determination in this
appeal is whether the subsequent
rezoning served to vest the
appellant with title. Before I
deal with this main issue then,
I would like to say that
contrary to counsel’s
contention, the appellant, at
the time of the acquisition, did
not need the consent or
concurrence of the Lands
Commission to acquire a valid
title to the plot 7. Section
47(1) of PNDCL 42 relied on by
the respondent counsel in
support of his assertion reads
as follows:
“An assurance of stool land to
any person by a Stool or by any
person who by reason of his
being entitled under customary
law, has acquired possession of
such land shall not operate to
pass an interest in or right
over a stool land unless it was
executed with the consent and
concurrence of the Lands
Commission unless such assurance
is to a person entitled by
customary law to the free use of
land within the particular area
and the assurance does not
involve the payment of any
valuable consideration whether
in cash or in kind.”
By this law, the consent and
concurrence of the Lands
Commission was needed in certain
cases involving the grant of
stool lands to pass the legal
estate. But, by the clear
provisions of section 4(6) of
PNDCL 42, the above provision
came into effect on the day
PNDCL 42 was made. It will be
useful to reproduce section 4(6)
of PNDCL 42. It reads:
“(6) Every law made by the
Council shall unless otherwise
provided in that Law, come into
force on the day it is made.”
PNDCL 42 was made on 30 December
1982, while the appellant
acquired the plot 7 on 29
January 1976. It was never
provided for that the law should
operate retrospectively.
I now deal with the central
issue at stake. There is an
interesting principle of law
known as feeding the estoppel by
the interest. Founded on Roman
Dutch Law, it operates on this
basic principle of estoppel that
at common law a man cannot be
heard to deny the existence of a
state of affairs which he has
previously asserted. The
principle has been applied in
the following cases:
Cuthbertson v Irving [1859]
4 H & N 742, Webb v Austin
[1844] 7 M & G 701 and
Rajapaske v Fernando [1920]
AC 892 at 897.
By this doctrine, where a man
conveys or demises land in which
he has not the legal estate or
any interest whatsoever, he
stops himself from disputing
thereafter the validity of such
grant or demise. In other words,
there can be no reason for him
to turn round later and argue
that he passed no valid title.
More importantly, when he
subsequently acquires the estate
or interest which he lacked at
the time of the grant, there
becomes vested in the grantee
that estate or interest which he
formerly enjoyed by estoppel
only. In other words, the
subsequent acquisition of the
interest by the grantor enures
not to his benefit, but to the
benefit of the grantee.
Lord Morton, in delivering the
judgment of the court in the
Rajapaske case, stated the
principle as follows:
“…where a grantor has purported
to grant an interest in land
which he did not at the time
possess, but subsequently
acquires the benefit of his
subsequent acquisition goes
automatically to the earlier
grantee, or, as it is expressed,
‘feeds the estoppel’.”
The Rajapaske case is a
case nearly approaching the
facts of this case. The
appellant Thomas Cary, had in
1909 purported to convey certain
lands to the respondent’s
predecessors in title. He had no
valid title in the land at the
time of the grant and his
grantees in reality acquired
only the possessory title, the
real title being in the Crown.
The appellant sued to recover
those lands. The respondent
denied the appellant’s title and
set up title in himself. One of
the conclusions drawn by the
court was that when the
appellant subsequently acquired
the title from the Crown, the
benefit accrued automatically to
the respondent’s predecessors in
title.
Apply this principle to the
facts of this case. The
respondent’s predecessor in
title purported to convey a
building plot to the appellant.
It was in actual fact a plot
zoned for sanitary, not
residential purposes. Even so I
do not think this fact per se
affects, and so invalidates, the
title acquired by the appellant.
Firstly then, respondent is
estopped from denying the
validity of the acts of his
predecessor in title. But even
if the argument is that his
predecessor passed no valid
title to the appellant in view
of the purposes for which the
land had been set aside, at the
date of the grant, the
subsequent rezoning of the land
for residential purposes would,
by the above doctrine,
automatically clothe the
appellant with the legal estate
which she lacked. This
subsequent acquisition will thus
feed the estoppel, that is, the
interest which she enjoyed by
estoppel only. Put in other
words, the interest acquired
does not vest in the respondent,
in which circumstances, it was
wrong for the trial judge to
have decreed title in favour of
the respondent. The proper
decision I think was for him to
have entered judgment for the
appellant.
In the result I would allow the
appeal, set aside the judgment
of the court below together with
the costs awarded and enter
judgment for the appellant as
follows: (a) declaration of
title; (b) perpetual injunction
restraining the defendant; (c)
damages for the trespass i.e.
respondent’s interference with
her right in the property and
which interference I have
described in this judgment.
I assess damages at ¢100,000.
AMUAH JA.
I agree.
KPEGAH JA.
I also agree.
Appeal allowed.
Justin Amenuvor, Legal
Practitioner. |
