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JUDGMENT

MRS. JOYCE BAMFORD-ADDO J.S.C.:

This is an appeal against the unanimous decision of the Court of Appeal dated 18th January 1996 affirming the judgment of the High Court dated 15th September 1993 granting an order of mandamus against the Lands Commission.

The Respondents in this appeal acquired a leasehold interest in a large tract of land from the James Town Stool on the Winneba Road known as Korkor Dzor, by an indenture dated 28th September 1973 and registered as L.R. No. 374/78. This document is marked Exhibit 'A' in the Record of Proceedings. The grant was made by Nii Adja Kwao II in his capacity as James Town Mantse with the consent and concurrence of the accredited elders and received the concurrence of the Appellant Lands Commission, the body statutorily empowered by Act 123 of 1962 to give due concurrence to all grants of Stool Lands and record them in their books. In 1974 the said Chief was destooled by the National Chieftaincy Tribunal which declared that his enstoolment was null and void. In view of this the Respondents were prevailed upon to renegotiate another grant with Nii Okpe III on 28th July 1976 for the same piece of land for yet another valuable consideration. The 2nd indenture covering this second grant was marked Exhibit 'E' which was submitted to the Lands Commission for a fresh concurrence but was refused. The Appellants by letter marked Exhibit 'C' dated 7th February 1990 wrote to the Respondents as regards Exhibit 'A' as follows:

"Dear Sir,

ADMINISTRATION OF LANDS ACT 1962 DOCUMENT NO .A.C. 8780/73

Reference is hereby made to the above-mentioned document to which concurrence has been granted by the Lands Commission.

It is observed that the above grant was made by Nii Adja Kwao II who was adjudged never to have been a chief. This being the case all grants made by him in his purported capacity as James Town Mantse, are in law null and void.

An application has therefore been placed before the Lands Commission to have the transaction expunged from the records of this Secretariat.

You are therefore being informed of this intention.

Yours faithfully

For Executive Secretary

Vanderpuye Orgle Estates

Accra."

The Respondents protested by letter from their Solicitor but this protest was met with a negative result and he eventually applied to the High Court for an order of mandamus to compel the Appellant to restore to its books and property records the deed of lease Exhibit 'A' which Appellants were intended to expunge from their records. The application was granted by the High Court and the Appellant appealed to the Court of Appeal but that court dismissed the Appeal which resulted in this present appeal to this court.

A number of grounds of appeal were filed but in my view two of them are relevant and would dispose of this appeal. I will therefore deal these two grounds.

Ground one is

a. That the Court of Appeal misdirected itself on the effect of the judgment of the Chieftaincy Tribunal of the National House of Chiefs declaring the enstoolment and installation of Nii Adja Kwao II as null and void.

b. The Court of Appeal erred in holding that the acts of Nii Adja Kwao II ought to bind the James Town Stool.

c. The Court of Appeal erred in holding that the grant by Nii Adja Kwao II to the Respondent was valid.

Ground 2 states that

"The provisions of Act 123, having imposed a duty on the Minister vis-a-vis the Lands Commission to grant concurrence to disposition of stool lands, and having further set out remedies or reliefs on a refusal for aggrieved parties thereunder, the court erred in granting mandamus as the existence of specific statutory reliefs in respect of duty obligations under statute precludes the granting of prerogative orders including mandamus" Ground I a, b, and c would be dealt with together.

Nii Adja Kwao II was installed a chief in 1959 and Gazetted in the Ghana Gazette Extraordinary No. 69 published by authority and dated 1st August 1959, as a chief entitled to perform customary and statutory functions.

L.N. 201, James Town Mantse Recognition Order 1959 stated as follows:

"The enstoolment of Samuel Eric Golightly Odartei Thompson, otherwise Nii Adja Kwao II as James Town Mantse is recognised and any person failing to recognise Mr. Samuel Eric Golightly Odartei Thompson otherwise Nii Adja Kwao II as enstooled James Town Mantse commits an offence against the Chiefs recognition Act 1959, and shall be liable accordingly.

Made in Accra this 1st day of August 1959

A.E.A. OFORI ATTA

MINISTER OF LOCAL GOVERNMENTS".

The installation of the said Mantse having received Government recognition as indicated above made his installation at the time properly valid and he was held out as the lawful representative of the James Town Stool with capacity to act on behalf of the stool.

The argument of Appellant is that once the nomination and installation and enstoolment of Nii Adja Kwao II in 1959 was later declared null and void by the National House of Chiefs in a destoolment proceedings in 1983 it follows that he was never a James Town Mantse, his acts cannot bind the James Town Stool and therefore that Exhibit 'A' is null and void. Appellant relied on the decisions in Mcfoy vs. UAC Limited 1962 AC 152 and Moshie vs. Bagyina (1963) 1 GLR 337 which decided that where an act is void and is a nullity every proceedings or thing which is founded on it is also void. This is a general principle which does not affect land and is inappropriate in this case where Exhibit 'A' would be shown not to be void but valid. But as stated earlier Nii Adja Kwao II's installation in 1959 was not void when he was duly recognised a chief of James Town by the then Government. Further, a reigning chief is the agent of the stool he occupies while he remains on that stool see Ababio vs. Tutu (1962) 1 GLR 489 which held that a stool is a corporation sole, a legal entity which is represented by the reigning chief.

See also Quarm vs. Yankah II and Another (1930) 1 WACA 80 at 83 which was cited in the Ababio vs. Tutu case supra, wherein Deane C.J. at p.83 had this to say

".... Since the conception of the stool that is and has always been accepted in the courts of this colony is that it is an entity which never dies, a corporation sole like the crown and that while the occupants of the stool may come and go stools go on for ever. When therefore the Respondent is sued as representing the stool since he is the present occupant he is not sued as the successor of the previous holder but only as the person for the time being representing something that has never changed he is in fact the agent through whom the stool acts at present while the  former  chief was the agent through whom it formerly acted."

If Nii Adja Kwao II was the agent of the stool in 1959 and acted on behalf of the stool then he had capacity to act for the stool at the time Exhibit 'A' was made in 1973 and his acts would bind the stool. In such case the disposition of land made to Respondent cannot be said to be void and therefore Moshie vs. Bagyina in the circumstances of is no authority in support the Appellant's argument contained in his ground of appeal. Exhibit 'A' was validly made by Nii Adja Kwao II in 1973 and as agent of the stool. Exhibit 'A' binds the James Town Stool and is therefore valid.

Amankwah vs. Kyere (1963) GLR. 409 also shows that once a chief has been duly and properly installed chief and recognised by Government as such he has authority and capacity in law to enter into an agreement binding upon the stool. In that case it was held in holding (3) that 

"a stool is a corporation sole and provided the occupant has been elected and installed in accordance with law and custom a person contracting in good faith with the stool is entitled to his remedies should the contract later be abrogated. Even where the appointments of a stool occupant is later invalidated his contracts are not thereby invalidated." (underscoring mine) 

On these I hold that while Nii Adja Kwao II was occupying the James Town Stool he had capacity to dispose of stool land and his later destoolment would not invalidate the valid disposition made by him in respect of Exhibit 'A' which binds the James Town Stool. Another reason for my view is that even if Exhibit were void which is denied, the doctrine of a bona fide purchaser for value would apply. The doctrine is laid down in Mercantile Investment and General Trust Company vs. River Plate Trust Loan Agency Co. (1894) 1 Ch. 578 which states as follows:

"A purchaser of land cannot be estopped as being a privy in estate by a judgment obtained in an action against the vendor commenced after the purchase."

See also Abbey vs. Ollenu (1954) 14 WACA 567 which relied on the same Mercantile Investment and General Trust Co. vs. River Plate Trust Loan and Agency Co. case (supra).

In the Abbey vs. Ollenu case land was conveyed to Respondent who later built on the land in ignorance of the fact that after his purchase, and before he built, the Appellants sued his vendor and obtained declaration of title in their favour. After the building was completed appellants as plaintiffs sued the Respondent and obtained judgment for the recovery of possession and mesne profits; this was set aside on appeal and Appellants appealed to the Court of Appeal. Held:

"The Respondent was not estopped as being a privy in estate by a judgment in an action against his vendor commenced after the purchase."

See other similar cases such as Nettey vs. Odjidja 1952-55 land case p.244.

Attram vs. Aryee 1965 GLR. 341 S.C. all to the same effect.

The law then is that a purchaser of land would not lose his land by virtue of a judgment in litigation commenced after the sale. Similarly even if a valid deed is legally invalidated for the proper legal reasons i.e by a subsequent legally proper judgment which is not so in this case, the doctrine of bona fide purchaser for value would apply to protect the title of such purchaser. The Appellant in this case seeks to invalidate an agreement on land properly made to Respondent, by the properly recognised chief of James Town, Nii Adja Kwao II with capacity to dispose of James Town Stool Land on behalf of the Stool. The ground relied on by that Appellant, for this unprecedented action is the judgment of the National House of Chiefs to the effect that the installation of Nii Adja Kwao II was null and void resulting in his destoolment. According to Appellant this judgment would nullify the agreement Exhibit 'A' and consequently they are enabled to withdraw their concurrence to that agreement to made it void. The National House of Chiefs jurisdiction concerns and extends only to chieftaincy matters not land disputes and its jurisdiction cannot affect title to land, which jurisdiction is vested only in the Judiciary under 1992 Constitution. Further as said earlier the disposition in Exhibit 'A' being valid at the time it was made by the said Chief remains valid even after the said chiefs destoolment and is binding on the James Town stool. Considering the fact that the same stool made a second conveyance of the same land to the same Respondent in Exhibit 'E' it does not appear to me that the James Town Stool, would be justified in either challenging or seeking the invalidation of Exhibit 'A' itself, that appears to be the desire of Appellant, basing its reasons for such action on wrong legal grounds. Clearly this whole case was brought about by the wrong legal interpretation put on the effect of judgment of the National House of Chiefs by the Appellant, resulting in the Lands Commission's illegal, and unjustified action in rendering Exhibit 'A' void after over 20 years. The Appellant's action is clearly wrong and unjustified considering the relevant law already discussed above.

Exhibit 'A' complied with all legal requirements concerning the disposition of stool land and the vendor Nii Adja Kwao II had capacity to dispose of the land, in the name of the James Town Stool which disposition was also concurred in by Appellants. Consequently Exhibit 'A' is valid not void and it follows that the withdrawal of the concurrence given to Exhibit 'A' for the wrong reasons must be remedied by this court as this has no doubt occasioned an injustice to Respondent which ought to be attracted by the Order of Mandamus, since Respondent cannot resort to the relief provided under S.8(2) of Act 123 of 1962.

In such a case Respondent must have a remedy and has rightly applied for an order of mandamus to correct a clear injustice. For the above reasons ground one has no merit and fails.

Ground 2 states as follows:

"That the provisions of Act 123, having imposed a duty on the Minister vis-a-vis the Lands Commission to grant concurrence to the disposition of stool lands, and having further set out the remedies or reliefs on a refusal aggrieved parties thereunder, the court erred in granting mandamus as the existence of specific statutory reliefs in respect of duty obligations under statute excludes the granting of prerogative orders - including Mandamus."

S.8(1) of Act 123 of 1962. The Administration of Lands Act 1962 provides that:

"8(1) Any disposal of any land which includes the payment of any valuable consideration or which would by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration and which is made

a) by a stool;

b) by any persons who, by reason of his being so entitled under customary has acquired possessing such land either without payment of any consideration or in exchange for a nominal consideration, shall be subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted.

(2) disposal in writing and such approval shall have A person aggrieved by the refusal of the Minister to approve the disposal of any land under (1) of this section or by failure of the Minister to notify his decision regarding such disposal within three months of the date on which the application for concurrence was made may appeal to an appeals tribunal. Which may if it thinks fit approve such the same effect as the concurrence of the Minister."

It is to be noted that now under Act 483 of 1994, the Lands Commission Act 1994 S.4(3) appeal in the case of a refusal to grant concurrence lies straight to the High Court.

It does seem to me that this ground of appeal is quite untenable in the circumstances of this case. This is because the said S.8(2) of Act 123 only provides relief in the case of refusal of the Minister to grant concurrence to the disposition of land under S.8(1). In this case concurrence was given to Exhibit 'A' by the Lands Commission in discharge of its duty under the said S.8. However this concurrence was later withdrawn by that authority on unjustified grounds as I have discussed earlier above. This action was brought by Respondents seeking or order of mandamus against the Lands Commission not for the purpose of granting a fresh concurrence which duty had already been exercised by the Commission, but for an

"Order of Mandamus to issue directed to the Lands Commission and its Executive Secretary to restore to the property records the Deed of lease reference No. AC. 8780/73 registered as L/R. No. 2374/98" i.e. Exhibit 'A' which the Commission had given Respondent notice of expunging from the records. The reason for the expunging of details of Exhibit 'A' from the Lands Commission's records was clearly stated by the Appellant in its letter Exhibit 'C'. Whether the Appellant have carried out this action was not ever in the whole proceedings directly admitted by them neither was it also directly denied which is unfortunate as I would have expected the Appellant to be candid and helpful with the Court. However it is only in the Appellant's statement of case filed on 14th November, 1997 page 6 states:

"Examining the facts in relation to the application of Section 8 sub section (2) Exhibit 'A' could not be said to fall within the category of documents caught by this section i.e. Exhibit 'A' is not a document which the Minister had refused to grant concurrence to what had happened to Exhibit 'A' was that the concurrence has been revoked by the Minister/Lands Commission as per reasons given by their letter of 7th February 1990 (see p.13 of the proceedings" i.e. Exhibit 'C')

Here I find an admission of the fact that the Commission per Minister of Lands had in fact revoked concurrence as contained in Exhibit 'C'. This explains the stout defence put up by the Appellant in their attempt to justify their action complained of by Respondent which implication was not lost to me.

Refusal to grant concurrence when first applied for under Act 123 is not the same as withdrawing a prior given concurrence and expunging records of Exhibit 'A'. In the case of a refusal section 8(2) Act 123 provides procedure for appeal to a tribunal, in the latter situation the law provides no remedy for such actions, no doubt because such act resulting in the nullification of a prior valid deed was never within the contemplation of the powers given the Appellant under Act 123 and Appellant does not point of any specific grant of such power under Act 123 or any other law, for their action. Nor can section 11 of the interpretation Act 1960 C.A. 4 apply in this case.

This is because the power referred to in S.11 affect power to grant a licence, authorisation or permit and to revoke same if necessary, and does not include the duty to give or refuse concurrence to legalise deeds in respect of land dispositions. If this were so, a deed which is valid one day would became invalid the next at the pleasure of the Lands Commission even if by an Unjustified withdrawal of a prior given concurrence and or not whether done "judicially, judiciously or capriciously" see R. vs. Lands Commission Ex Parte Akainyah (1975) 2 GLR 487. In that case an application for mandamus succeeded in the High Court for an order to compel the Lands Commission to give statutory consent and concurrence to a grant in compliance with Article 164(3) of the Constitution 1969 and it was held granting the application that

"(1) Since the management of Stools Lands was given to the Lands Commission for the benefit of stool subjects, they in the course of performing their duties must exercise their power or discretion judicially and judiciously but not capriciously ...........

I am of the view that if the Commission had not been invested with power to withdraw concurrence once given properly, nor does it possess judicial power to decide title in land matters. Withdrawal of prior properly given concurrence resulting in the deprivation of good title to Respondents as contained in Exhibit 'A' was a wrong, which should be corrected by order for mandamus to restore to the property records the deed of lease i.e Exhibit 'A' which had been wrongly expunged from those records as indicated in Exhibit "C" by the Appellants.

For my part I see no power granted in Act 123 for the withdrawal of a concurrence once granted to validify deeds on land so as to render that deed void. And as I said, resort to C.A 4 is unhelpful and unnecessary for the determination of the issue before this Court. Further it is only a court of justice not an administrative body such as Appellant which has the right and power to made a decision on land dispositions so as to deprive a bona fide purchaser of his title in the land. And as provided in Article 125(3) of the 1992 Constitution.

"Article 125(3) the judicial power of Ghana shall vest in the judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall or be given final Judicial power."

The lands Commission should not be permitted to usurp the function of the judiciary as the result of their action would so imply, this would be in contravention of Article 125(3).

For the history, use and effect of mandamus see H.W.R. Wade Administrative law 5th Edition page 63 which states thus:

"Lord Mansfield said in sweeping terms in R.V. Baker (1762) 3 Burr. 1265 at 1267...'it was introduced to prevent disorder from a failure of justice and defect of Police. Therefore it ought to be used upon all occasions where the law has established no specific remedy and where injustice and good Government there ought to be one ..... the value of the matter, or the degree of its importance to the public police is not scrupulously weighed. If there be a right and no other specific remedy, this should not be denied."

According to the same writer at page 63

"within the field of public law the scope of mandamus is still wide and the Court may use it freely to prevent breach of duty and injustice."

See the King v. The Revising Barrister for the Borough of Henley (1912) 3 KB 518. In this case a revising barrister for parliamentary borough, employed clerical assistance to mark upon the list of voters the results of his decisions as pronounced orally in court. By some inadvertence the clerk omitted to strike off the lists, of some of the persons whose names were to be expunged from the list when the mistake was discovered on the register later it was held by the court

"Held that the court had jurisdiction to grant writs of mandamus to the revising barrister and to the town clerk to have the mistake corrected; that in the circumstances there need not be a previous demand and refusal to do the act sought to be enforced and that the proper course was for the revising barrister to expunge the names on a copy of the register and to deliver the same to the town clerk and for the town clerk to make the necessary corrections in the register"

In the same way if entries on records or property books at Lands Commission have been wrongly expunged by the wrongful withdrawal of concurrence by the Appellant, this court in order to correct an injustice, should issue mandamus to compel the re-entry of the necessary particulars in the said records. As Darling J. in the above quoted case put it

"The court has power by prerogative writ of mandamus to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good government require that there ought to be one for the execution of common law or the provisions of a statute."

He continued as follows at p.529

"Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it is our duty to be vigilant to apply it in every case to which by any reasonable construction it can be made applicable."

See also Halsbury's Laws of England vol. II 3rd Edition p.84

Par 159"..... Its purpose (i.e. Mandamus) is to supply defeats of justice; and accordingly it will issue to the end that justice may be done in all cases where there is no specific legal right and no specific legal remedy for enforcing that right: and it may issue in cases where although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual."

On the facts and circumstances of this case it is clear and evident that the Appellant's erroneous interpretation of the effect of the judgment of the National House of Chiefs, has occasioned an injustice by the mistaken expunging of the particulars of Exhibit 'A' from property records and books of the Lands Commission as I have already stated, see Exhibit 'C' par. 3 thereof. Since no specific legal remedy was provided for correcting such error under S.8(2) of Act 123, Mandamus would lie to compel Appellant to correct this error and restore the records on Exhibit 'A' in the interest of justice.

It is for the above reasons that I support the grant of mandamus by the High Court as affirmed by the Court of Appeal but I do so only in respect of Exhibit 'A'. This is because the application by Respondent to the High Court was only in respect of Exhibit 'A' and not also Exhibit 'E' which was wrongly included in the High Court's order. The application for the writ of mandamus prayed for states.

"Order of mandamus to issue directed to the Lands Commission and its Executive Secretary to restore to the property records, the deed of lease reference No. AC 8780/73 registered as L/R No. 2374/78"

The High Court in issuing the order of mandamus prayed for, mistakenly included Exhibit 'E' in that order which should properly have covered only Exhibit 'A'. Consequently the order in respect of Exhibit 'E' should be considered as wrongly issued, both Exhibit 'A' and Exhibit 'E' cannot co-exist any way. In any case Exhibit 'A' and Exhibit 'E' are really the same document in effect and the validating of Exhibit 'A' should suffice to remedy any injustice done to Respondents.

In granting rnandamus in this case it is my hope that this case would inform officials of institutions such as the Lands Commission of the importance of working within the confines of the statutory powers granted them by legislation and that in legal matters they would approach the Attorney-General first for legal advise. This would minimize the occurrence of cases such as this happening again in the future and would help to instill more confidence in users of land in this country.

In conclusion to the extent of the modification stated above in the order of mandamus issued by the lower Courts, I would dismiss the appeal.

C. HAYFRON-BENJAMIN, J.S.C.: 

In this appeal the Lands Commission shall hereafter be known as APPELLANTS and VANDERPUYE ORGLE ESTATES LIMITED shall hereafter be kown as RESPONDENTS. At first blush it appears that this appeal was wrongly dismissed by their Lordships in the Court of Appeal. However it becomes clear on a close reading of the materials put before the Court below and the submissions of Counsel that their Lordships appreciated the import of the application and thereby came to the right conclusions.

It seemed as if the judgment of the National House of Chiefs dated the 25th March, 1983 - which incidentally was not exhibited to the Court of first instance, though BROBBEY J.A. refers to it as having been exhibited or thereafter - declaring the James Town Manche's nomination, election and installation null and void became pivotal in their Lordships declaration on the principal issue whether the Applicant was entitled to an order of mandamus. In my respectful opinion the matter of the effect of the declaration made against the then James Town Manche did not in anyway denude the validity of any transactions made by him while he was undoubtedly on the stool. All the evidence tendered by the Respondent in the High Court - clearly showed that in accordance with the applicable laws Nii Adja Kwao II was the duly recognised James Town Manche. Consequently I cannot agree that the Appellants view of the legal position of Nii Adja Kwao II that:

"Any alienation of James Town Stool land made by him in his capacity as James Town Manche is similarly null and void"

is right. The matter is not without authority. The case of AMANKWA VRS. KYERE (1963) 1 GLR 409 offers a perfect illustration of the circumstances under which the deeds and actions of a Chief subsequently destooled will be valid. Holding (3) thereof states:

"a stool is a corporation sole and provided the occupant has been elected and installed in accordance with law and custom, a person contracting in good faith with the stool is entitled to his remedies should the contract later be abrogated. Even where the appointment of the stool occupant is later invalidated, his contracts are not thereby invalidated". (emphasis mine).

It was common ground that the James Town manche, Nii Adja Kwao II Paramount Chief together some elders of that stool had leased a vast tract of land - to be precise 214 Acres - as per an indenture of lease dated 28th September, 1973 to the Respondent herein. The period of the lease was to commence

"from the 6th day of August, 1976 for a TERM OF NINETY-.NINE (99) YEARS as the rent reserved in clause 4(e) hereof'.

The transaction being in respect of stool land the validity of the lease could only commence from the date on which concurrence was obtained from the Lands Commission. This concurrence was obtained on the same date as the agreed date of the commencement of the term granted.

By the nature of the lease, the said lease was in all respects a Building scheme whereby the Respondents were to develop the area of land by first gridding the area into plots and then developing the plots in a certain manner including such principal covenants as:-

"(a)  The lessee shall within two (2) years from the date hereof prepare a development plan of the whole area dividing the demised land into building plots each to be an area note exceeding 24,000 square feet and showing thereon the order in which the plots are to be developed.

(b) The lessee shall within Twenty (20) years erect Or cause to be erected dwelling houses on the Said plots but so that each such dwelling house may at the lessees' discretion be erected on one or more plots or in any other manner but provided always that the order of erection of the houses shall be in accordance with the order of erection of the houses set out on the development plan aforesaid.

(c) The lessee shall on the completion of each such dwelling house pay unto the lessor his successors in office and assigns the year rent of ¢11.00 for each plot on which such dwelling houses shall be erected.

(d) The lessee shall give to the lessor notice in writing of the construction of each such dwelling house from the date of which the rent or proportion of such rent as aforesaid for each plot on which the dwelling house has been erected shall commence.

(e) If at the end of Twenty(20) years any plot on the demised premises shall still remain undeveloped the said plot or plots so remaining undeveloped shall revert to the lessor". (emphasis mine)

Notwithstanding certain inconsistent covenants in the lease, the general impression is clear and the business name of the Respondents - VANDERPUYE ORGLE ESTATES a partnership incorporated Private Partnerships Act (Act    ) - confirms me in my view that it was indeed a building scheme.  A building scheme

"Comes into existence where land is laid out in plots and sold to different purchasers or leased to different lessees, each of whom enters into a (restrictive) covenant with the common vendor or lessor that his particular plot shall not be used for certain purposes". see page 527 Cheshire on THE MODERN LAW OF REAL PROPERTY (9th Edition).

A second lease prepared between the Dzasetse of James Town Stool and the Respondent and dated the 28th July, 1976, as a precaution in the event that the Appellant was correct in the view of the law they had taken need not be countenanced as in any case it did not receive the concurrence of the Lands Commission.

The present litigation arises as a result of an application made by the Respondents for a concurrence to the creation of a sublease of some plot or plots of the land so leased to them in favour of one ADAMU MAIGA. The concurrence was refused on the ground that the Respondent had "no title to give". Whereupon the Respondent gave the Appellants the requisite notice and instituted the present application.

I have examined the said notice and while I am not satisfied that it was an unequivocal notice as would be required by law to satisfy the preconditions for an application for mandamus, the need to do justice whenever such prerogative applications are presented to the Courts impels me to accept it.

By their motion on notice the Respondents pray for:

"An Order of mandamus directing either the Executive Secretary or the Lands Commission or both to restore to their property Records the Deed of Lease reference number ac. 8780/73 (32000/25041) and registered as L/R. 2374/1978  made between the James Town Stool acting by Nii Adja Kwao II as James Town Mantse of the one part and Messrs Vanderpuye Orgle Estates Ltd. of the other part."

And the grounds for the application were stated thus:

"1. Refusal, Failure or Neglect to carry out Statutory Duty under Act 122 Sections 8, 22; alternatively Act 123 Sections 8(1).

2. Unwarrantable usurpation of the jurisdiction of the Courts and of the Land Title Adjudication Committee under both Act 372 of 1971 and P.N.D.C.L. 152, S. 135(2).

3 .Wilful Disregard of L.I. 450 OF 1965 and the Court of Appeal's judgment in NTEM v. ANKWANDAH (1977) 2 GLR. 452. Also CHAHIN v. EPOPE PRESS

(1963) 1 GLR. 163 C.A.

4. Breach of the Applicant's Right to freedom from interference with his property, contrary to Article 18 Clauses 1 and 2 of the 1992 Constitution of Ghana."

The pith of the Respondents presentation in the High Court was as contained in paragraphs 15 and 16 of the affidavit in support of their said motion which run:

"15. Despite the clear lack of legal authority, the Respondent made bold to reject a sub-lease made by my Company to one ADAMU MIAGAH on the alleged ground that my Company the Grantor of the sub-lease had no title to give.

16. I verily believe therefore that the Respondent has carried out the intention announced by Exhibit "C" to expunge my Company's leasehold from its records, hence the rejection of our sub-lease."

The Respondent took the threat seriously and therefore instituted the application for a mandamus to have the Register corrected. In his submissions in the High Court Counsel for the Appellant stated that "we never carried out the intention". This statement could not be correct since in the view of Counsel for the Respondent, the Appellants had nevertheless rejected their application for concurrence. I think that in the light of the evidence Counsel making such a statement from his place at the Bar was clearly in contempt of Court. Counsel must know that they are officers of the Court and any statement which they make from their place at the Bar which is palpably false or the bona fides of which they cannot vouch amounts to a contempt of Court. Consequently I hold that the Respondents were right in approaching the Court for a Mandamus  for wherever there is a danger or threat that the interest, whether proprietary or otherwise, will be prejudiced or unlawfully interefered with mandamus will lie.

Before us the Appellants have set out useless and irrelevant grounds of appeal which, as I have said, are centred on the issue of the effect if the destoolment of Nii Adja Kwao II on the validity of the lease executed by him in favour of the Respondents, that issue has been dealt with earlier in this opinion. It seems that the Appellant did not have any quarrel with the Order of the High Court as affirmed by the Court of Appeal concerning the grant of the Order of Mandamus. Consequently but for the insertion in their grounds of Appeal that the judgment was against the weight of evidence, I would have been inclined to dismiss the appeal in limine.

It is trite learning that the general ground of appeal imputes the presence of matters of mixed law and fact and invites a court of review to examine the record and, where necessary, to resolve the issues anew. In the present appeal the issue is clearly whether mandamus was properly granted by the High Court and affirmed by the Court of Appeal in the light of the facts presented before the Court of first instance.

A mandamus is simply

"an order requiring an act to be done."

It may issue to enforce a right against public officers and other Statutory authorities derived by the citizen from a statutory legal duty or the common law. Its purpose was succinctly set down in an old English case by LORD MANSFIELD. A Chief Justice of England as:

"a prerogative writ, to the end of which the subject is entitle, upon a proper case previously shown, to the satisfaction of the Court. The original nature of the writ, and the occasions it should be used. It was introduced to prevent disorder from a failure of justice and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy and where in justice and good government there ought to be one. ... it has been liberally interpreted for the benefit of the subject and advancement of justice,....If there be a right and no other specific, this should not be denied." (see English & Empire Digest Vol. 16 (1961) at 315).

Thus an order for mandamus may issue against a public officer, a statutory authority or person who has a public duty to perform under the common law to do any act so warranted but who refuses or neglects to do that act or perform that duty. It includes the correction of such acts or duty wrongly performed. The order neither grants victory to the person applying nor is it the result of litigation.

In the present appeal the Respondents - in the High Court put their prayer simply in the submissions. The Respondent was seeking an order of the High Court:

"to restore in their records the deed of lease made and dated the 28th day of September, 1973 between the James Town Stool acting by its gazetted Mantse Adja Kwao II now deceased on the one part and the Applicants on the other part."

To this prayer the Appellants only made a sham reply and persisted in their mistaken view of the law that they were entitled unilaterally to declare the lease null and void on the grounds that the grantor chief had been destooled. Consequently they were also entitled to expunge that lease from their records.

In my respectful opinion Brobbey, J.A. gave a fitting answer to the Appellants' submission when in his opinion contributed for the judgment he wrote:

"Since the appellant had no legitimate reason for removing the deeds from the records, it was correctly ordered to restore or to retain in their records the documents in respect of which concurrence had been granted. When the facts leading to this case are seriously considered, one can not but impugn, the decision of the appellant's Officials as unwarrantably officious action which does fully take into account due process of the law. I make this point for a number of reasons. The first reason is that the lease was actually executed between the stool represented by the James Town Mantse and the Stool Elders on the one hand, and the respondent on the other. The participation of the stool elder was indispensable in Validating the lease transaction. The Chief alone could not have validity executed Exhibit 'C'. The judgment of the NHC. Did not rule that the appointments and positions of the stool elders who executed the lease with the stool occupant were also null and void. They presumably remain the same stool elders today. Needless to say, they must be presumed to be working with whoever is the current James Town Mantse who is the properly elected and enstooled chief. It is the stool, the stool occupant and stool elders who must take legal action to recover the lands from the respondent. This is because several questions will arise in such an action which will have to be adjudicated upon before it can properly be decided whether the lease were valid that the appellant could properly expunge them from its records. Until then the appellant cannot constitute itself into an authority on its own and use its own interpretation of the NHC judgment, to expunge the records."

I think there is an omission of the one word in the quotation stated above. That part of the quotation should read:

... as unwarrantably officious action which does not fully take into account due process of the law."

It may very well be that the Appellants have power to revoke or even expunge documents and other written materials which are by law required to be lodged with them as part of the legitimate records - and indeed they have. But that power cannot be exercised without due process of law. It was therefore presumptuous of the Appellants by themselves to interpret the effect of the judgment of the National House of Chiefs and give effect to their own view.

It is contrary to constitutional norms and the very principles upon which our common law is based, that the legislature should invest such awesome powers and authority in the hands of an executive officer of whatever class to attempt to expunge or rectify public records without the due process of law. My emphasis on that part of Brobbey, J.A.'s opinion cited and corrected above in support of the necessity for compliance with due process of law impels me to the view that the Courts will declare any such decisions unilaterally made by such officers null and void. Here again I will declare the acts of the Appellants in regard to the lease under consideration null and void.

Yet again the Appellants complain that the Respondents could have appealed in terms of the relevant sections of the Act 123 instead of invoking the prerogative writ of mandamus. It is however clear from the record that the Appellants did not comply with the provisions of the Act 123 and did not furnish the Respondents with a written refusal. Instead they sent to the Respondents a written notice of "intention". That notice of intent - for what it was worth - was not sufficient to invoke the appeal process granted under the Act. In my respectful opinion even where there is an alternative process it is not an inflexible rule that the statutory procedure so laid down must necessarily be followed. The present appeal arises out of the exercise of the undoubted discretion of the High Court judge in granting the mandamus thus sought. In my respectful opinion the remedy of an appeal now advocated by the appellants would have failed as the Appellants themselves had not complied with the conditions precedent which would have opened the way for an appeal property so-called to be lodged.

As I have stated there were certain defects in the lease dated the 28th September, 1973 which the Appellants sought to expunge from their Register. Appellant's conduct was a gross officious interference in the sanctity of private contracts and ought to be roundly condemned. In my respectful opinion the parties should have been left to their remedies, if any, under the lease.

I will therefore dismiss the appeal.

AMPIAH J.S.C.:

On the 18th of March, 1993, the Respondent in this appeal applied ex-parte for leave for an order of Mandamus,

"............. directing either the Executive Secretary or Lands Commission or both to restore to their Property Records the Deed of Lease reference number AC. 8780/73[32000/2504] and registered as L/R 2374/1978 made between the James Town Stool acting by Nii Adja Kwao as James Town Mantse of the one part and Messrs. Vanderpuye Orgle Estates Limited of the other part..."

Leave was granted the Respondent then Applicant in that application on 22/3/93 and, on 23/3/93 pursuant notices were filed. The Appellant, Respondent in that application responded to the Notice. The Court heard the application and ruled on 15/9/93 granting the Applicant the reliefs it sought.

Aggrieved by the High Court Ruling, the Appellant filed an appeal against it to the Court of Appeal on 11/11/93. On 18/1/96, the Court of Appeal dismissed the appeal and affirmed the decision of the High Court. The present appeal is against the decision the Court of Appeal.

In this appeal, the Respondent/Appellant will be referred to as the Appellant and the Applicant/Respondent will be referred to as the Respondent.

The Appellant originally filed seven grounds of appeal including the general ground that the judgment was against the weight of evidence. Leave was however granted the Appellant to argue further grounds of appeal on which its Statement of Case had already commented; Notice of further grounds of appeal was filed on 21/11/98 pursuant to the Court's order.

The grounds for this appeal are:-

(a) The Court of Appeal misdirected itself on the effect of the judgment of the Chieftaincy Tribunal of the National House of Chiefs declaring the enstoolment and installation of Nii Adja Kwao II as null and void.

(b) The Court of Appeal erred in holding that the persons who concurred in the grant were accredited elders of the James Town Stool when the judgment of the Chieftaincy Tribunal of the National House of Chiefs had declared Nii Adja Kwao II's elders not to be the proper persons by custom to enstool him.

(c) The Court of Appeal erred in holding that the acts of Nii Adja Kwao II ought to bind the James Town Stool.

(d) The Court of Appeal erred in holding that Nii Adja Kwao II was both in law and in fact the Chief of James Town.

(e) The Court of Appeal erred in holding that the grant of Nii Adja Kwao II to the Respondent was valid.

(f) The Court of Appeal erred in holding that the Respondent is protected and is lawfully vested with the land despite the lack of capacity by Nii Adja Kwao II.

(g) Th judgment is against the weight of evidence.

And the Additional [further] grounds are:-

(1) The Court erred in granting the Order of Mandamus as there was no proof that the Lands Commission owes a duty to keep records of registers of Leases/Conveyances.

(2) The provisions of Act 123, having imposed a duty on the Minister vis-a-vis the Lands Commission to grant concurrence to the disposition of Stool Lands, and having further set out the remedies or reliefs on a refusal aggrieved parties thereunder, the Court erred in granting Mandamus as the existence of specific Statutory reliefs in respect of duty obligations under statute excludes the granting of Prerogative Orders - including Mandamus.

(3) Having regard to the fact that the Lease, the subject-matter of the suit, was executed between 2 parties having mutual covenants creating rights and duties between the parties, any prerogative application in relation to the said lease should require that all parties to the said lease should have been heard in relation to the application. The Court below was in error therefore, not to have made the James Town Stool a party to the Application - even though the Applicant had not done so in the first instance.

(4) The Court below and the Court above erred in not examining the lease, which is the main evidence upon which the Applicant claimed to have a right either to sublet or to assign any part of its interest for if that had been done the Courts would have found as a fact that the sub-lease for which concurrence had been sought and refused, did not qualify for any such concurrence, as the sub-grant was itself invalid as offending the covenants in the head-lease.

(5) That there was nothing before either Court to consider as at the time the head-lease had lapsed.

(6) And also whether there is any duty cast on the Lands Commission to maintain a register or at all.

I intend to deal with the grounds together in line with the various submissions made.

For a clearer appreciation of the issues involved in this matter, a brief history of the case would be required.

By an Indenture dated 28th September, 1973 and registered as LR No. 374/78, the Respondent acquired a leasehold interest in portion of the land belonging to the James Town Stool. The grant was made by Nii Adja Kwao the then James Town Mantse with the consent and concurrence of his accredited elders. This grant received the concurrence of the Appellant - Commission, the body statutorily empowered to give such concurrence. The document was tendered in evidence as Exhibit "A". At the time the grant was made, there was pending in the Chieftaincy Tribunals, a chieftaincy matter challenging the status of Nii Adja Kwao. In pursuance of a decision delivered by the National House of Chiefs in, declaring that Nii Adja Kwao's installation was null and void, the Appellant duly served notice on the Respondent of its intention to withdraw the concurrence given to the Deed of Lease [Exhibit "A"]. In an apparent attempt to validate Exhibit "A". the Respondent caused to be prepared for it, a second document by one Nii Okpe III the Dzasetse and the alleged acting James Town Mantse at the time that Exhibit "A" was prepared - See Exhibit "D", letter from the Respondent's Solicitor. This new lease which was never concurred in was tendered in the proceedings as Exhibit "E". In pursuance of the lease granted the Respondent [Exhibit "A"] the Respondent purported to grant a sub-lease of the head lease to one Adamu Maigah. The Appellant refused to give concurrence to this sub-lease. After a long tussle between the Respondent and the Appellant, the Respondent brought this application for Mandamus, to compel the Appellant to restore the concurrence to the records of the Commission.

Unfortunately, in coming to their conclusion, both the High Court and the Court of Appeal had taken into consideration, in my opinion, certain extraneous matters which seem to blur the main issues under consideration in the application.

The application before the Court, involved only one document, namely the document registered as No. L/R 2374/1978, dated 28/9/73 and made between Nii Adja Kwao as James Town Mantse and the Respondent. This was tendered as Exhibit "A" in the application. The Mandamus application was for the restoration of the concurrence given to that document and which seems to have been withdrawn or revoked by the Appellant. The deed, Exhibit "E" made between Nii Okpe III and the Respondent and the Respondent and the sub-lease made thereunder were never the subject-matter of the application. However, in concluding his ruling the trial judge said,

"........ In the result I issue an order of Mandamus directed to the Lands Commission, the Respondent herein to carry out its public duty in respect of the two documents submitted by the Applicant...." Which were these two documents and what was this public duty to be carried out in respect of these documents?

It has been assumed that once Exhibit "A" had received concurrence, all other documents coming out of that document must automatically receive concurrence. This assumption is wrong. The Lands Commission reserves the right to give concurrence or refuse to do so, to any transaction or assurance involving Stool lands. Exhibit "A" and Exhibit "E" refer to the same land granted to the Appellant by two different persons alleged to be grantors holding office as Mantse or acting Mantse, at the time of the grant. I do not see how concurrence could have been given to the two documents unless of course, it is conceded that one of the documents is incapable of transferring the interest in the land. A critical examination of the two documents would reveal that even though Exhibit "A" was said to have been made on 28/9/73, it to take effect on 6/8/76 it was not until 10th May, 1978 when execution of the document was proved and at a time when Exhibit "E" had been prepared to replace Exhibit "A". Different set of elders had consented and concurred in the two documents! If Exhibit "E" had been made at the time of the grant to replace Exhibit "A" what was the necessity in submitting Exhibit "A" for concurrence? How could there be a Mantse and an Acting Mantse at the time of the grant? According to the Respondent's Solicitor, the late E.D. Kom, of blessed memory,

"My clients derive their title not only from Nii Adja Kwao but also from Nii Dzasetse who was the then Acting James Town Mantse at the time of the grant ...." - Exhibit "D". (emphasis mine)

It is obvious that the two documents cannot co-exist. There are many questions to be answered in respect of these documents, which questions touch on the Commission's discretion whether to grant concurrence, refuse it or revoke it. I will return to this issue in the course of my judgment. But since Exhibit "E" was not the subject-matter of the application before the Court, the High Court had no jurisdiction in ordering that Mandamus Order should apply to both documents. The Court of Appeal unfortunately committed the same error by affirming the decision of the High Court. I would allow the appeal on this issue and set aside the order affecting Exhibit "E".

The application was brought under Order 59; Rules 4[2] and [4] of this Order state:-

"4[2] The notice or summons shall be served on all persons directly affected, and where it relates to any proceedings in or before a Court, and the object is either to compel the Court or an officer thereof to do any act in relation to the proceedings or to quash them or any order made therein, the notice of motion or summons shall, be served to the clerk or Registrar of the Court and the other parties to the proceedings.

[4] If on the hearing of the motion or summons the Court or Judge is of opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this Rule, the Court or Judge may adjourn the hearing, in order that the notice or summons may be served on that person, upon such terms [if any] as the Court or Judge may direct."

The proceedings before the Court show that since the installation of Nii Adja Kwao in 1959 as James Town Mantse, there have been numerous Court actions challenging his capacity to be on the James Town Stool.

At the time that the grant in Exhibit "A" was made, there was pending before the Chieftaincy Tribunal a case between one Otukonor Sackey and Ors. Vrs. Nii Adja Kwao. That was in 1974. This was the matter which eventually ended at the National House of Chiefs in 1993, whose judgment the Lands Commission, the Appellant had relied on to expunge or threaten to expunge the concurrence given to Exhibit "A'. At the time of the present application therefore there were persons other than the Lands Commission who were interested and directly affected by the application. It cannot be said that it was only the Lands Commission which had sought to expunge the concurrence which was interested in the matter: All those who had taken action against Nii Adja Kwao, and who had won in the National House of Chiefs' decision by which the Lands Commission was seeking to rely on to expunge the concurrence, had interest in the matter and were directly affected by whatever order the Court would make, and were entitled to contest the right of the Lands Commission to give concurrence. Of course, the Lands Commission was a necessary party having acted under the provisions of the law and being the statutory body charged with the duty of concurring or refusing to concur in assurances affecting Stool Lands. But the James Town Stool - as it was obvious that Nii Adja Kwao had left the scene - and the elders, had interest in the matter. After all, the land was vested in the Stool. The Stool and its elders should have been notified of the pendency of the application as required by law. The issues of "bona fide purchaser for value" and who the legitimate elders were, were issues properly determinable between the Stool and any purchaser. The exclusion of the Stool from the mandamus proceedings was bound to result in a miscarriage of justice and did so in these proceedings. I would in the circumstances allow the appeal and set aside the proceedings.

It is not quite clear from the papers filed in this application whether or not there has been actual removal from the records, the concurrence given by the Appellant to Exhibit "A", or there has been only an intention to withdraw. While the Respondent had concluded thus in its submission,

".....Therefore their act of withdrawing amounts to Interfering with our rights...." [see page 32 lines 20 - 21 of the record of proceedings]

the Appellant had responded,

".....we were informing them of our intention. We haven't carried out that intention...." [see page 43 line 32 - page 44 line 1]

So far no letter of actual withdrawal has been tendered in these proceedings. That being so, there could be no order for the restoration of the concurrence, even if an application for mandamus lies. The application would be dismissed as misconceived.

However, in its affidavit filed on its behalf by one Samuel Mensah Addo, High Executive Officer, it said at paragraph 9:-

"That I am advised and verily believe same to be true that the application is misconceived .... and the Applicant cannot compel the Defendants to restore in its records that which in effect is a nullity."

It is doubtful whether the above paragraph could be taken as an admission of the withdrawal of the concurrence given to Exhibit "A". Assuming, but not accepting, that there has been withdrawal of the concurrence, would an Order of Mandamus lie to compel the Appellant to restore the concurrence to the records? Unfortunately, too much attention was given to extraneous matters in resolving the main issue before the Court; both by the trial Court and the Court of Appeal.

An order of mandamus is an order of most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunals, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. [see Halsbury Laws of England, 3rd Ed. Vol. 11, page 84 para. 159].

In Ghana, the Supreme Court in the exercise of it's supervisory jurisdiction is given power to order mandamus [Vide Article 132 of the Constitution] .

The Order of Mandamus will issue where there is a specific legal right and no specific legal remedy enforcing that right or where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual - see R Vrs. Thomas [1892] 1 Q.B.426.

An Order of Mandamus will be granted ordering that to be done which a Statute requires to be done - see Ex-Parte Nash [1850] 15 Q.B. 92 at p.96.

Article 267[3] of the Constitution provides -

"[3] There shall be no disposition or development of any Stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the Planning Authority for the area concerned.

[4] Where the Regional Lands Commission fails or refuses to give the consent and concurrence under Clause [3] of this article, a person aggrieved by the failure or refusal may appeal to the High Court."

Also, Section 8[1] of the Administration of Lands Act, 1962 [Act 123] provides:—

"8[1] Any disposal of any land which involves the payment of any valuable consideration or which would, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration and which is made,

(a) by a Stool

(b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration,"

shall be subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted."

The Lands Commission Act, 1980 [Act 401] provides in its Section 3 the following:-

3[1] An assurance of Stool land to any person shall not operate to pass any interest in or right over any Stool land unless the same shall have been executed with the consent and concurrence of the Commission.

[2] Where the Commission grants or refuses to grant its consent and concurrence to any assurance of Stool land under Sub-Section (1) of this Section it shall, within twenty-one days after taking such decision, cause notice of the decision to be served on the person applying for the consent and concurrence."

In this Act, "assurance of Stool Land" 'includes Conveyances or transfer of Stool land or any interest therein and the instrument of transfer of such land or interest' - Vide Section 24[1] of Act 401.

The activity or conduct which provoked the present application was in January 1993. Section 23 of Act 401 enjoins the Courts to have recognition of the provisions of Act 123 and the Statutes which relate to land which falls under the provisions of Act 401.

It cannot be disputed that the Statutes referred to above impose a legal duty on the Lands Commission or any person to whom that duty is delegated. That legal duty which Undoubtedly is in the nature of a public duty consists in giving concurrence to assurances of Stool lands; it includes a duty also to refuse to give such concurrence.

Section 11 of the Interpretation Act, 1960 [CA.] provides -

"Where an enactment confers power to grant a licence, authorisation or permit, the power includes power to revoke, suspend or amend the licence, authorisation or permit."

According to the Notes on the Interpretation Act, 1960, this Section aims at eliminating the repetition of a common formula in enactments. It is based on Section 25 of the Interpretation Act, 1957 [No. 29] which states:-

"Where by or under any Act a power is conferred to make an appointment, issue an Instrument or grant a licence, authorisation or permit, then, unless otherwise provided in that Act, the power conferred shall include the power to suspend or terminate the appointment, to revoke the Instrument, and to revoke or suspend the licence, authorisation or permit as the case may require."

I have no doubt in my mind that the power or the duty placed on the Commission to concur in assurances involving Stool lands carries with it the power or duty also to refuse, revoke/withdraw, amend or suspend any concurrence given. It would be unreasonable to say that once concurrence has been given it cannot be withdrawn or revoked. Say, if a concurrence is given under fraud, are we saying that the Commission cannot revoke it? That would be a travesty of justice. Consequently, the legal duty imposed under the Statutes referred to earlier, would include giving concurrence, refusing concurrence, revoking or withdrawing concurrence, suspending concurrence and amending concurrence.

There is no laid down conditions for giving the concurrence. The power to concur, as in the exercise of all forms of legal duties imposed, is left to the discretion of the Commission. The exercise of such power or duty may include investigations into -

[i] the land which is to be granted whether or not is already incumbered

[ii] the capacity of the person granting the land

[iii] the duration of the grant

[iv] whether or not there are any pending litigations over the land etc. etc.

And, the Commission on the basis of these enquiries may decide to exercise its legal duty in any manner it finds proper. Thus, in cases where an application has been made for the issue of an Order of Mandamus, the order will only be allowed to go commanding the officer, tribunal, corporation etc. to decide a particular matter. No writ will be issued dictating to him or them in what manner it or they have to decide - see R Vrs. Marshland Smeeth and Fen District Commissioners [1920] 1 K.B. 155 at p. 165. The award of mandamus is fully compatible with the principle that it will not issue to order a body how to exercise its jurisdiction or discretion. In the R Vrs. Marshland Smeeth etc. case [supra] the Court observed,

If for example, a jurisdiction be given to an inferior Court all that that Court can be called upon by the High Court to do, save in special circumstances, is to hear and determine the matters brought before it in a regular and proper manner. Hence rnandamus is granted if jurisdiction has been declined by the inferior Court, to hear and determine only. If the inferior Court has a discretion as to the decision it may give, then if that discretion be exercised bona fide and not arbitrarily or illegally and without reference to extraneous considerations the Court will not control the exercise of that discretion." [emphasis mine]

This observation may equally apply to the instant case, where jurisdiction is given to the Lands Commission to concur in a document with a right to refuse such concurrence, or to revoke/withdraw etc. etc., then it is not an appropriate remedy to compel the Commission [Appellant] to act in a particular manner. As stated earlier in this judgment, no conditions have been set down for the exercise of the legal duty imposed on the Commission; the exercise of that duty or power is vested in that Commission itself.

In the exercise of its legal duty, the Appellant relied on a decision given by the National House of Chiefs, a Court of competent jurisdiction. There had not been any appeal against the decision of that house. The decision was therefore binding on the parties. By that decision the status of Nii Adja Kwao, the grantor in Exhibit "A" was declared to be null and void. It would mean therefore that short of being a usurper to the James Town Stool, he had no capacity to make the grant in Exhibit "A". Both the trial Court and the Court of Appeal had doubted the effect of that decision. They had both employed the principle of 'a purchaser for value without notice' to attack the decision made by the Commission and, to support their Order of Mandamus.

In my opinion, it was wrong to use that principle to defeat the exercise of the Commission's discretionary powers. The Appellant [Commission] may have been wrong in saying that since the grantor [Nii Adja Kwao] should be taken as never to have been enstooled a Chief of James Town, it has revoked or intends to revoke the concurrence given to Exhibit "A" but neither the Court of Appeal nor the High Court had jurisdiction to sit on that issue on appeal. That issue was left to the Chieftaincy Tribunals and the Supreme Court. The principle laid down in Mcfoy Vrs. U.A.C. Limited [1962] AC. 152 and Moshie Vrs. Bagyina [1963] 1 GLR 337, is still good law! Nobody is entitled to act on an order or decision declared to be null and void and say that his act is valid because he did not know of the existence of that fact.

One of the arguments used in the application of the principle of a purchaser for value without notice to support the grant of the Order of Mandamus by the Courts was that Nii Adja Kwao having been recognised by the Government and he having been on the Stool albeit illegally, for so many years, a person who dealt with him in that capacity could not be denied rights he had acquired before the grantor was 'destooled'. I would like to dispel the impression that Nii Adja Kwao was 'destooled'. Nii Adja Kwao was never 'destooled'; he was said to have come to the Stool illegally, he did not come from the heritable lineage. His position was that of a usurper; one who has never been on the Stool. Admittedly the Government had recognised him, but there is evidence to show that since his installation there had been attempts to get him off the Stool - see the case of -

"In the Matter of the Chiefs [Recognition] Act, 1959

- And -

In the Matter of the James Town Manche [Recognition]

Order L.N. 201 OF 1ST August, 1959

- And -

In the matter of an Application for leave to Issue an Order of Certiorari for the said Order to be brought to Court and quashed etc. Misc. Suit No. 34/59." [See Exhibit "F" attached to the Respondent's Statement of Case].

This application which sought to remove Nii Adja Kwao by the quashing of the notice recognising him a Chief was refused.

But the case which was started in 1974 and which eventually ended at the National House of Chiefs in 1993 had been pending at the time that Nii Adja Kwao made the grant in Exhibit "A"; at the time there was litigation over his status:

In the first place, the fact that Nii Adja Kwao was gazetted or recognised by the Government was not conclusive of his status. As was similarly considered in the case of Ntem Vrs. Ankwandah [1977] 2 GLR 552, registration of a Deed under Act 122 did not constitute a state-guaranteed title. The fact that Nii Adja Kwao had been recognised did not estop any person from challenging his entitlement to the James Town Stool. There is no evidence that the Respondent made any search before the grant; the existence of the litigations, was notice to him. The application of the principle of "a bona fide purchaser for value...." depended upon certain facts which the Court on the evidence before it, could not apply; besides, the proper persons against whom the principle could have been applied were not before the Court. In the circumstances, the application of the principles was an extraneous matter which was wrongly considered. It was unfair to other persons directly affected by the order.

Be that as it may, the principle of law is that a body or tribunal which has jurisdiction to determine a case does not lose jurisdiction by incorrectly determining the matter. The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to inquire or upon the correctness of its findings on these facts, but upon their nature. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of laws and fact relating to the measure of compensation and the tenure of the office and it does not exceed its jurisdiction by determining any of these questions incorrectly - see S.A. de Smith's 'Judicial Review of Administrative Action', 3rd Edition page 97. Whenever a judicial tribunal - and this may apply to any person or body charged with the exercise of power - is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal - see [1929] 45 LGR. 459 also, Anisminic Ltd. Vrs. Foreign Compensation Commission [1969] 2 AC 147 at 171.

As the Commission had a discretion in its determination of the duty imposed on it by law, it could decide either wrongly or rightly. The Court cannot command it by an order of mandamus to determine in a particular way; the aggrieved person may appeal.

As stated before, the Appellant had a discretion as to how it would perform it legal duty. As was produced in evidence, apart from the National House of Chiefs' decision, other factors had come to the notice of the Appellant upon which factors it could exercise its discretion.

Firstly, it was brought to the notice of the Court, that there were numerous litigations in respect of the land, pending before various Courts. These involved other Stools which have laid claims to portions of the land granted. The Respondent has not denied these. Under Section 8 of Act 123 any transaction which is entered into by the Stool 'shall be of no effect' unless concurrence is given. And, any transaction entered into in contravention of the provisions of Section 8 shall be void [vide Section 8(6) of Act 123]. Also, the Constitution provides that "there shall be no disposition or development of any Stool land....."unless the Lands Commission has given its consent and concurrence to the transaction [vide Article 267(3) and (4)]. Since validity of a transaction involving Stool lands depends upon the concurrence given, it would be unjust to concur in a transaction when there are other claimants to the land. It is part of the legal duties of the Commission to examine all the facts and claims before the grant, and to refuse, revoke or  suspend the grant where necessary.

Secondly, by an Executive Instrument, 'the James Town Stool Property [Seizure] Instrument 1974 [E.I. 185]', all James Town Stool Property including its land, had been vested in the District Administrative Officer, Accra. That was in 1974; the Instrument was revoked on 15th May, 1978. This means that at the time that Nii Adja Kwao or for that matter Nii Okpe purported to grant the land to the Respondent, the property was vested in the District Administrative Officer, Accra and the Grantors had no capacity to grant the lease. One may ask, if the Lands Commission had inadvertently concurred in a grant, would it not have power to revoke the concurrence, when it became aware of the situation? If there was no power of revocation or withdrawal under the Statutes referred to, there could be no power to restore to the records under the Statutes. There would therefore not be any legal duty for which an Order of Mandamus would lie. Such an interpretation under the Statutes would be absurd. It is my contention that by the interpretation of the relevant provision of the Act, there exists a legal duty. In the particular circumstances of the case however the enforcement of any such duty should not be by Mandamus proceedings unless that duty has not been exercised. In fact neither Nii Adja Kwao nor Nii Okpe III could give the Respondent a valid title of that which was not vested in them. In such a situation the proper way to go about it, is by a substantive action to determine the various issues arising from the circumstances.

Article 267[4], of the Constitution, Section 8[2] of Act 123 and Section 3 of Act 401 - all referred to supra, prescribe an alternative remedy where the Commission fails to perform its legal duty. Although the Constitution vests the legal duty in the Lands Commission, Act 123 vests that duty in the Minister. But the Lands Commission Act, 1980 [Act 401] provides:-

"3 (1) An assurance of Stool land to any person shall not operate to pass any interest in or right over any stool land unless the same shall have been executed with the consent and concurrence of the Commission.

(2) Where the commission grants or refuses to grant its consent and concurrence to any assurance of stool land under sub-section [1] of this section it shall, within twenty-one days after taking such decision, cause notice of the decision to be served on the person applying for the consent and concurrence.

(3) Where the Commission fails or refuses to give its consent and concurrence to an assurance of stool land, any person aggrieved by the failure or refusal may appeal against it to the High Court of Justice.

(4)  Any person desirous of appealing under this section shall within three months after service of notice of the decision on him file a Notice of Intention to appeal stating his grounds of appeal at the High Court, and copies thereof served on the Commission and all parties connected with the proceedings before the Commission.

(5) The high Court may on an appeal under this section confirm, reverse or amend the decision of the Commission appealed against or order the decision to be sent back to the Commission for amendment or otherwise make such orders and give such directions as the justice of the case may be required.

(6)  Any Rules of Court applicable to appeal proceedings before the High Court in civil matters shall, with such modifications as may be necessary, and subject to such directions as the High Court may give in the interests of justice, apply to an appeal under this section."

It follows that it is the Commission and not the Minister who must give the Concurrence or refuse it. I have already stated that, the power to grant concurrence or refuse it includes a power to revoke, suspend or amend the grant. Consequently when the Commission has exercised any of its legal duties in the manner aforesaid the remedy available to an aggrieved person is the one prescribed under the statutes; an order of mandamus would not be a proper course. The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus when there is an alternative specific remedy which is not less convenient, beneficial or effectual. See R. Vrs. Marshland Smeeth Vrs. Fen District Commissioners [supra]

In Ramia Vrs. African Wood Limited [1956] 1 W.L.R. 193 p. 400 Coussey J. [as he then was] said:-

"When you find in an ordinance only one particular mode of affecting the object one train of formalities to be observed, the regulations which the section prescribed are essential and imperative."

And in his Book "Judicial Review of Administrative action", referred to earlier, De Smith sums up the position thus:-

"The existence of a right of appeal against a refusal to carry out a duty has generally been regarded as fatal impediment in application for mandamus; nevertheless when the need for speedy just and efficient justice demands the Court have shown themselves ready to grant relief even though the applicant has declined to avail himself of the right of appeal."

It has also been said that the alternative remedy must be remeduim juris, one that can be dispensed by a Court. As stated above, Act 401, Section 3 gives a detailed procedure by which an aggrieved person can have his grievance resolved. It has been contended that that procedure is only permissive and that an aggrieved person can have recourse to any body and by whatever means he could have his grievance adjudicated upon. In my opinion, the words "may appeal  ........." only gives the aggrieved person the opportunity to decide whether or not he would appeal as, no one can be forced to appeal against a decision: but once he has decided to appeal, he can only go to the High Court on appeal following the procedure laid down in the Act. Section 3[5] of the Act, tells us what the Court can do in the circumstances. The Court may confirm what had been done; reverse what had been done or amend the decision or order the decision to be sent back to the Commission for amendment or otherwise make such orders and give such directions as the justices of the case may require; in other words, it is a rehearing of the application for concurrence etc. I think this would be a fairer and more effective way of adjudicating on the issue, than to command by an Order of Mandamus to do something without reference to all persons directly affected by the matter in issue.

A mandamus will not go when it appears that it would be futile in its result. Accordingly, the Court should not, by mandamus, order something if it is of the opinion that no conceivable benefit will accrue to the applicant as, where at the time the matter comes to Court, by the terms in the document for which the enforcement is required, the document has lapsed - See R. Vrs. Whiteway, ex- parte Stephenson [1961] V.R. 168. Clause 4 of Exhibit "A" states:-

"[b] The Lessee shall within Twenty [20] years erect or cause to be erected dwelling houses on the said plots.....

"[e] If at the end of Twenty [20] years any plot on the demised premises shall still remain undeveloped the said plot or plots so remaining undeveloped shall revert to the Lessor." [emphasis supplied]

In the manner by which the matter was brought to Court, since the Lessor was not involved in the application, it was difficult to determine any of these issues. No receipts of payment of rent and no development plans were shown. Even though the Lessee was entitled to sub-let or assign the Lease, there was need for a written notice to the Lessor to that effect. Since Nii Adja Kwao was no longer on the scene, the only person interested who should have been notified of the pendency of the action was the incumbent occupant of the James Town Stool. Be that as it may, Clause 4[e] provides that "if at the end of twenty years any plot on the demised premises shall still remain undeveloped the said plot or plots so remaining undeveloped shall revert to the Lessor". The lease was dated 28/9/73 and the application was brought in March, 1973. The Ruling of the Court was on 15th September, 1993. The Judgment of the Court of Appeal was on 18/1/96. It is quite clear that at the time these proceedings were in Court, the Applicant had no further interest in the land for a Mandamus Order to lie to restore the concurrence if at all. It would therefore have been futile to make a Mandamus Order.

In conclusion, for the various reasons given, I hold that the Application for an Order of Mandamus was misconceived and the order was wrong.

I would accordingly allow the appeal and set aside both the judgments of the High Court and the Court of Appeal. I would dismiss the application for Mandamus.

ACQUAH, J.S.C.:

My Lords, what is the fate of a grant of land made by a chief whose nomination, election and installation are later declared by a Court to be null and void, and in consequence thereof the Chief is, destooled? Does the grant made before such a decision, become null and void as contended by the Lands Commission in this appeal, citing in support thereof, Mcfoy Vrs. UAC LTD (1961) 3 All ER 1169. and Mosi Vrs. Begyina (1963) GLR 337 S.C.?

This issue is really part of a wider one dealing with the validity of acts of persons and officers in positions or authority whose authority, office or appointment under which they performed those acts are later found to be defective or invalid. Are those acts also invalid? But first the facts of this appeal.

The Vanderpuye Estates Limited was granted a leasehold of a tract of land by the James Town Stool represented by Nii Adja Kwao II and the principal elders of that Stool. Nii Adja Kwao II was at that time gazetted and recognized as Chief of James Town by LN 201 of 1959. The grant was evidenced by an indenture dated 28th September, 1973, stamped as No. 8780/73 and registered as L/R 2374/78. The grant also received the concurrence of the Lands Commission. In 1974, a Chieftaincy petition was filed at the Ga Traditional Council challenging the nomination election and enstoolment of Nii Adja Kwao II. The suit went through the various chieftaincy tribunals and was finaly determined at the National House of Chiefs, where on the 25th March, 1983, the nomination, election and enstoolment of Nii Adja Kwao II was declared null and void. He was consequently destooled.

Thereafter, the Lands Commission in a letter dated 7th February, 1990, to Vanderpuye Estates Ltd. stated that they intended expunging from their property records the Document No. 8780/73 and registered as L/R 2374/78. The basis of the Lands Commission decision, as advanced by them was that by the judgement of the National House of Chiefs, Nii Adja Kwao II was deemed never to have been a chief, and therefore the said grant made by him in his capacity as James Town Mantse was null and void. Since this letter lead to the institution of this action, it is important to reproduce it in extenso. The letter reads:-

"Dear Sir

Administration of Lands Act, 1962. Document No. AC 8780/73

Reference is hereby made to the above-mentioned document to which concurrence has been granted by the Lands commission.

It is observed that the above grant was made by Nii Adja Kwao II who was adjudged never to have been a chief. This being the case all grants made by him in his purported capacity as James Town Mantse, are in law null and void. An application has therefore been placed before the Lands Commission to have the transaction expunged from the records of this Secretariat.

You are therefore being informed of this intention.

Yours faithfully,

(Sgd) ......................

For Executive Secretary

Vanderpuye Orgle

Estates

Accra."

The James Town Stool on whose behalf Nii Adja Kwao II and  the stool elders executed the document No. AC 8780/73 was not given a copy of this letter.

Vanderpuye Estates Limited, therefore on 18th March, 1993 applied to the High Court for rnandamus to compel the Lands Commission to restore unto their property records the said deed of AC 8780/73. On 15th September, 1993, the High Court granted the application. The Court of Appeal also confirmed the High Court's decision. Still undaunted, the Lands Commission lodged the instant appeal to this court on a number of grounds which really boil down to two; first, that, challenging the propriety of resorting to the High Court for mandamus in the face of an alleged remedy provided in Section 8(2) of the Administration of Lands Act 1962 (Act 123); and secondly, the contention that because the nomination, election and installation of Nii Adja Kwao II had been declared a nullity, the grant contained in Document No. AC 8780/73 is also a nullity. Now the High Court in granting mandumus to compel the Lands Commission to restore the respondents documents unto their property records, said:

"I believe that purchasers or innocent third parties ought to find protection under the law in such situations, and certainly a court of equity would never sanction or support the respondent's contention because the confusion and absurdity arising therefrom can very well be imagined".

At the Court of Appeal, all the three judges unanimously dismissed the appeal and affirmed the conclusion of the High Court. Mrs. Wood J.A. sought to do so on the principle of a bona fide purchaser for value without notice of any defect in the title of the vendor. Brobbey J.A. on the other hand argued that the lease was granted in September, 1993 whereas the chieftaincy litigation which resulted in the destoolment of Nii Adja Kwao II began in 1974. Accordingly he sought to sustain the High Court's judgement, principally on the principle that a purchaser of landed property cannot be affected or estopped by litigation involving the vendor, initiated after the purchase has been concluded. His Lordship referred to cases like Abbey Vrs. Ollennu (1954) 14 WACA 567;

Mercantile Investment & General Trust Co. Vrs. River Plate Trust Loan and Agency Co. (1894) 1 Ch. 578; Nettey Vrs. Odjidja (1952-55) Land Cases 244; Attram Vrs. Aryee (I 965) GLR 341 SC; Golightly Vrs. Ashrifie (1961) GLR 28 PC; and Yomo Dancherebebi Vrs. Budu Kofi (1952-55) Land cases 50. Baddoo J.A., while agreeing with his two colleagues, pointed out that since Nii Adja Kwao II was recognized by the then Government in LN 201 of 1959, he was clothed with authority to make grants of the James Town Stool land with the consent and concurrence of  the elders of that stool. The grant to Vanderpuye Estate Ltd. could not in his view be impugned.

I do not intend, in this opinion, to go over the above principles ably expounded by my lords at the courts below. Instead I intend to dispose of this appeal from other angles. Now before examining the grounds of appeal it is necessary to make some preliminary observations.

The records disclose that after the destoolment of Nii Adja Kwao II, the Vanderpuye Estates Ltd. renegotiated the lease in respect of the same land with Nii Okpe III of James Town Stool in a deed dated 28th July, 1976, and that the Lands Commission refused to grant its concurrence to this deed. However, the subject-matter of this appeal is not this 28th July, 1976 deed but the 28th September, 1973 deed numbered AC 8780/73 in respect of which the Lands Commission's concurrence had long been granted. Thus the relief sought at the High Court reads:

"Order of mandumus to issue directed to the Lands Commission and its executive secretary to restore To the Property records the deed of lease reference Number AC 8780/73 registered as L/R No. 2374/78"

As to why the Lands commission refused to grant its concurrence to the deed of 28th July, 1976, two varying explanations are offered.

In the supplementary affidavit of one S.M. Addo, Higher Executive Officer of the Commission, he swears in paragraph 10 to 13 thus (Exh. A. refers to Deed No. AC 8780/73 and Exh. E that of 28th July, 1976):

10 .... The applicants submitted Exhibit E. to the respondent for statutory concurrence in replacement of Exh. A.....

11. That as at the date hereof different stools and Family heads such as the James Town, Aplaku and Bortianor stools have also been claiming ownership of the subject land....

12. That information available to the respondent also indicate that a suit between the Bortianor stool and the Applicants over the ownership of the subject land is still Pending at the High Court....

13. That it is, inter alia, because of the averments contained In paragraphs 11 and 12 herein that concurrence has not Yet been granted to Exh. E since it is the position of the Respondent that the grant of concurrence to Exh. E. will Be prejudicial to the Court case and the interests of the Other competing claimants".

The above explanation notwithstanding, the Lands Commission in its Statement of Case filed in this Court on 14th November, 1997 at page 4 paragraph 4 states:

"The said lease is dated the 28th day of July,, 1976. At that date the James Town Stool property had Been handed over to the District Administrative Officer, Accra by the James Town Stool Property (Seizure) Instrument 1974 (E.I. 85). This instrument was not revoked until the 15th May, 1978 by E.I. 57 of 1978. It therefore follows that at the time Nii Okpe III allegedly made the grant to the respondents the Control of the James Town Stool property including Lands was vested in the District Administrative Officer, Accra and Nii Okpe III has no authority or capacity to Make the grant to the respondents".

Which is which? Did the Lands commission refuse its concurrence to the 28th July, 1976 deed because of alleged competing claims to the Land as sworn to in the supplementary affidavit or because of EI 85? Whatever be the reason for refusing concurrence to the 1976 deed, the important point is that the claim for mandamus is not in respect of this 1976 deed but that of the 1973 numbered AC 8780/73.

Now as to whether the Lands Commission did indeed expunge the Deed No. AC 8780/73 from their property records as intended by them in their letter of 7th February, 1990, there is no letter from the Lands Commission informing the Vanderpuye Estates Ltd. that this had been done. Except the word of the Lands Commission itself in its said Statement of Case at page 6. Discussing the relevance of section 8(2) of Act 123 to Exhibit A, that is, Deed No. AC 8780/73 the Lands Commission states:

"Exhibit A is not a document which the Minister had refused to grant concurrence to. What has happened to Exhibit A was that the concurrence has been revoked by the Minister/Lands Commission as per reasons given by their letter of 7th February, 1990". (emphasis is supplied)

Now to the grounds of appeal. And I begin with the ground formulated in additional ground 2 which challenges the propriety of this action. It reads:

"The provisions of Act 123, however imposed a duty on the Minister vis-a-vis the Lands Commission to grant concurrence to the disposition of stool lands and having further set and the remedies or reliefs on a refusal aggrieved parties thereunder, the Court erred in granting mandamus as the existence Of specific statutory reliefs in respect of duty Obligators under statute excludes the granting Of prerogative orders - including mandamus.

In both their statement of case and at pages 33 and 34 of the record of proceedings, the Lands Commission argues that once section 8(2) of Act 123 clearly spells out how an aggrieved party should seek redress, it was wrong for Vanderpuye Estates Limited to resort to the High court for mandamus.

Now section 8(1) of Act 123 reads:

"8(1) Any disposal of any land which involves the payment of any valuable consideration or which would, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, and which is made,

(a) by a Stool;

(b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration, shall be subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted.

2)  Any person aggrieved by the refusal of the Minister to approve the disposal of any land under subsection (1) of this section or by the failure of the Minister to notify his decision regarding such disposal within three months of the date on which the application for concurrence was made, may appeal to an appeal tribunal which may, if it thinks fit, approve such disposal in writing, and such approval shall have the same effect as the concurrence of the Minister".

From the language of the above provisions it is clear that section 8(1) of Act 123 makes it mandatory to obtain the concurrence of the Minister in respect of a disposal of a stool land. While section 8(2) thereof provides the remedy for a person aggrieved by the Minister's failure or refusal to grant such concurrence. The remedy is by way of an appeal to an appeal tribunal made up of three judges or lawyers of not less than five years standing, appointed by the President in consultation with the Chief Justice. (See section 9 of Act 123)

It is also clear that the remedy in section 8(2) is in respect of the minister's refusal or failure to grant concurrence under section 8(1) of Act 123.

In a situation like this where the statute, in this case Act 123, provides a remedy under section 8(2) of that Act for particular disputes under section 8(1) of the same Act, the law is settled that generally it is that remedy in section 8(2) which should be resorted to in the event of the said dispute arising. Thus in Halsbury Law of England (3rd ed.) Vol.36 page 440 paragraph 664 it is stated:

"As a general rule, it may be said that where a statute itself provides a remedy there is a prima facie presumption that that remedy is intended to be the only one, but this presumption will by no means always prevail: (emphasis mine).

See also Waghorn vrs. Collison (1922) 91 LJKB 735 CA at 736 & 738 per Bonkes KJ.

Now the problem in the instant case is not one of a request for concurrence but that of a threat to revoke concurrence already granted, as contained in the Lands Commission's letter of 7th February 1990. In this connection it is important first to settle the issue whether the Lands Commission has power to revoke concurrence. Act 123 does not specifically say so, but section 11 of the Interpretation Act 1960 (C.A. 4) undoubtedly provides that a power to grant something includes a power to revoke that thing. The section reads:

"11. Where an enactment confers powers to grant a license, authorisation or permit, the power includes power to revoke, suspend or amend the license, authorisation or permit" (emphasis mine).

Therefore where a person is aggrieved by a revocation, suspension or amendment of his concurrence, he is to resort to the remedy under section 8(2) of Act 123.

But was section 8(2) of Act 123 in force at the time this action was instituted?

In fact before 1962 when the function of granting concurrence became a ministerial prerogative, it was either the chairman or the clerks of the defunct district and urban councils which performed this function. The substitution of the Minister by section 8(1) of Act 123 for these local officials had its own drawbacks. Accordingly when the 1969 Constitution was being prepared the excesses of the previous regime as to its land policy led the framers and later the Constituent Assembly to look far and wide for an institution to manage and administer stool and other lands with a minimum of political interference. The English Lands Commission set up by the Labour Government in 1966, captured the imagination of the Constituent Assembly and was incorporated into the 1969 Constitution with significant adaptations. Thus the 1969 Constitution established for the first time in Ghana, the Lands Commission in Article 163(1) thereof. And in article 164(3) provided that there could be no assurance of any stool land unless executed with the consent and concurrence of this Commission. It also provided that a person aggrieved by a refusal of the Lands Commission to grant its concurrence had a right of appeal to the High Court and not to the appeal tribunal established under Act 123. The Lands Commission Act of 1971 (Act 362) was subsequently enacted. The 1979 Constitution also continued with the Lands Commission under its article 189(1) and the Lands Commission Act of 1980 (Act 401) was in consequence made. It repealed Act 362. When the PNDC overthrew the 3rd Republic, PNDCL 42 was made which repealed, among other Laws, Act 401, and re-established the Lands Commission under its section 36. Section 47(1) of PNDCL 42 made it mandatory like previous legislations, to obtain the consent and concurrence of the Lands Commission in respect of any assurance of stool land. But unlike previous legislation, section 47(1) did not provide any remedy for a person aggrieved by a refusal or delay in granting concurrence.

Indeed in 1990 when the Lands Commission wrote their letter of 7th February, 1990, the Law regulating the Commission was the relevant provisions of PNDCL 42 and the unrepealed provisions of Act 123. The 1992 Constitution of Ghana in chapter 21, re-established the Lands Commission, authorized it inter alia, to grant consent and concurrence to any disposition and development of stool land, and gave a right of appeal to the High Court, to any person aggrieved by the Commission's refusal to grant consent and concurrence. Following the provisions of the 1992 Constitution, the Lands Commission Act of 1994 (Act 483) was enacted and Gazetted on 9th September 1994.

Now Vanderpuye Estates Ltd. instituted this action on 18th March 1993, at a time when the 1992 Constitution of Ghana was in force. Article 267 (3) of which, empowered the Lands Commission to certify that the disposition or development of any stool land is consistent with the development plan drawn up or approved by the planning authority for the Area concerned. Any person aggrieved by the failure or refusal of the Lands Commission to grant such consent and concurrence is provided with a remedy under Article 267 (4) thereof, in the following words:

"267(4) Where the Regional Lands Commission fails or refuses to give the consent and concurrence under clause (3) of this Article, a person aggrieved by the failure or refusal may appeal to the High Court".

The above constitutional provision obviously overrides section 8 (2) of Act 123. For the remedy for a refusal or failure to grant concurrence now lies at the High Court. Thus the Lands Commission's submission that Vanderpuye Estates Ltd. ought to have resorted to the remedy under section 8 (2) of Act 123 is patently erroneous since at the time the action was instituted, that is, 18th March 1993, the 1992 Constitution of Ghana was in force. Of course by article 267 (4) the remedy is by way of an appeal to the High Court. But Vanderpuye Estates Ltd. came by way of mandamus. Are they then to be thrown out of Court?

I concede that the existence of a right of appeal against a refusal to carry out a duty has generally been regarded as an impediment to an application for mandamus: R. v. Smith (1873) LR 8 QB 146; R.v. Bristol Licensing JJ (1893) 9 TLR 273-, R. v. London (City of ) Assessment Committee (1907) 2 KB 764; Stepney B.C. vrs. Walker (John) & Sons Ltd. (1934) AC 365, 395-397; Ex. P. Jarret (1946) 62 TLR 230; and Mc Beatty v. Gorman (1975) 2 NSWLR 262.

Nevertheless, where the interests of speedy and effective justice so demand the courts have shown themselves ready to grant relief even though the applicant has declined to avail himself of his right of appeal. Thus in R. vrs. Newcasttle-on-Tyne Corporation (1899) 60 LT 963 mandamus was issued to compel the authority to grant an application which it had no discretion to refuse. In R. vrs. Thomas (1892) 1 QB 426 at 431 the court held that notwithstanding the fact that the statute provided a right of appeal,

"the remedy by appeal would not be as satisfactory and effectual as the remedy by mandamus".

Again in R vrs: Paddinton Valuation Officer ex parte peachey Property Corp. Ltd. (1966) 1 QB 380 where the statute provided a right of appeal by way of a remedy to an aggrieved person, but the applicant's resorted to certiorari and mandamus, the Court of Appeal held that on the law, the applicants were entitled to do so. For the existence of the statutory remedy for the correction of particular assessments in a valid valuation list did not bar the rate payer who sought to attack the whole list from applying for the remedies by way of prerogative orders, for in such a case those remedies were more convenient, beneficial and effective than the statutory procedure. In R. vrs Perth Shire, ex p. Dewar and Burridge (1968) W.A.R. 149 it was held that a right of appeal was an inadequate remedy for the refusal of planning application on irrelevant grounds. In a large number of cases mandamus were issued to order tribunals of first instance to exercise a jurisdiction which they had wrongly declined to exercise in spite of the fact that the applicant could have appealed against the decision to refuse jurisdiction. On our local scene, Edusei J, as he then was, in Republic vs. Lands Commission ex parte Akainyah (1975) 2 GLR 487 granted mandamus to compel the Lands Commission to grant its concurrence, in the face of a statutory right of appeal. The courts therefore do exercise a wide discretion in the determining whether a statutory right of appeal is to be construed as operating as a bar to an application for mandamus. The major consideration being whether on the facts and in particular the issues raised for determination, mandamus would be more convenient, beneficial and effectual than the statutory right of appeal.

In the instant case the problem created by the Lands Commission was not a refusal to grant concurrence as same had been granted years ago. The problem as stated earlier, was that the Land Commission had threatened in their letter of 7th February 1990 that they intended to revoke the concurrence already granted. For in their view the grant was null and void because the nomination, election and installation of Nii Adja Kwao II whom the Commission regarded as the grantor, had been declared null and void by the National House of Chiefs.

lndeed from 7th February 1990 to the institution of this action on 18th March 1993, there is no evidence on record as to the positive steps the Lands Commission took either to carry their intention expressed in their letter, into effect or to retract it. Complete inactivity. And when the solicitors of Vanderpuye Estates Ltd. wrote protesting, the reply of the Commission dated 4th  February 1993, was to say the least, evasive. The reply reads:

"Sir,..............

Please refer to your letter dated 29th  January, 1993 and referenced amc - 20/0/DAN-A/PAA.

You have grossly erred in your appreciation of the functions of this Commission. You do not appear to have distinguished, the difference between registration of documents relating to land transactions on the one hand and the granting of concurrence to validate transactions affecting stool lands on the other hand. Until you are clear on these fine differences in the statutory Functions of the various bodies dealing in land, you would often write with such emotions which do no good to anyone.

Yours faithfully,

Sgd. Executive Secretary".

The above letter does not give any information as to whether the Commission had revoked, suspended or amended their concurrence. Since their letter of 7th February 1990, there was no further communication on this. And it was in their Statement of Case quoted above filed in this Supreme Court, that that Lands Commission for the first time disclosed that the concurrence had been revoked. As to when the revocation was done, is not disclosed. And why could the Lands Commission not notify Vanderpuye Estates Ltd. about this revocation, but wait for this action before making such disclosure?

It is also important to appreciate that the reason advanced by the Lands Commission in their letter of 7th February 1990, raises purely a legal issue as the basic facts are not in dispute. That is, there is no dispute that the National House of Chiefs had declared the nomination, election and installation of Nii Adja Kwao II null and void. And there is further no dispute that the Document No. AC 8780/73 was executed by Nii Adja Kwao II in his capacity as James Town Mantse. Thus the issue for determination is whether by the nullification of Nii Adja Kwao II's enstoolment, that document also stands nullified.

Indeed the unreasonable delay by the Lands Commission in the way they dealt with the problem created by themselves, makes it imperative to take legal action to compel them to sit up to their public duty. For a statutory duty must be performed without unreasonable delay, and that if any such delay occurs, mandamus may be employed to enforce the performance of such duty. Accordingly in R. Vrs. Home Secretary ex-parte Phansopkar (1976) QB 606 mandamus was granted on this ground against the Home Secretary when the Home office insisted that a would-be immigrant who was legally entitled to enter England without let or hindrance should wait for over a year in the queue of applicants for entry certificates. See also R. vrs. Governor of Durham Prison ex-parte Singh (1984) I ALL ER 983.

It is therefore clear that form the special circumstances of this case, the remedy of appeal, provided in article 267 (4) was not the appropriate and effective remedy to contain the problem created by the Lands Commission. The problem created was not one of a refusal or failure to grant concurrence, neither was it that of revocation, suspension or amendment of the concurrence already granted. A resort to mandamus was therefore the most effective and beneficial remedy to determine both the validity of the Lands Commissions contention and to achieve the restoration of the concurrence in question. It is for the above reasons that I agree with the lower courts that mandamus was the proper remedy in the circumstances.

Now to the crucial issue in this appeal. The Lands Commission's position is that since the enstoolment of Nii Adja Kwao II had been declared a nullity by the National House of Chiefs, the Document No. AC 8780/73 executed by him and other is also a nullity because by that decision Nii Adja Kwao II was deemed never to have been a chief. The Court of Appeal rightly pointed out that no where in the judgment of the National House of Chiefs was it stated that Nii Adja Kwao II was deemed never to have been a chief.

To begin with an examination of the Document No. AC 8780/73 clearly shows that the leased transaction was between the James Town Stool and Vanderpuye Estates Ltd., and that Nii Adja Kwao II, the principal elders and Councillors of the James Town Stool executed the document for and on behalf of the James Town Stool. Thus the rent accruing from the lease was not paid or payable to Nii Adja Kwao II but through the Chief Lands Officer or his authorized agent into the relevant Stool Lands Account, At page 11 of the record of proceedings where the concurrence of the Lands Commission to the Document No. AC 8780/73 is shown, it is stated under the said concurrence:

"The rent payable under the lease shall be paid to the Chief Lands Officer or to his duly authorized agent".

And under sections 19 and 20 of Act 123 which were in force before the promulgated of PNDCL 42, the beneficiaries of the proceeds of this stool land account were:

i. Local authorities in whose areas the lands were situated.

ii The relevant stool or traditional authority

iii Projects and scholarship for the people of the area.

It is therefore quite clear that the lease document of AC 8780/73 is that of the James Town Stool and not Nii Adja Kwao II. It was on behalf and to the benefit of the James Town Stool that Nii Adja Kwao II and others executed that document. It is thus fallacious for the Lands Commission to equate Nii Adja Kwao II with the James Town Stool simply because he executed the document.

For a stool is a corporation sole, separate and distinct from its occupant. And that while the occupants come and go, the stool never dies. Accordingly in Quarm vrs. Yankah II (1930) 1 WACA 80 at 83, Deane CJ said:

".....the conception of the stool that is and has always been accepted in the courts of this colony is that it is an entity which never dies, a corporation sole like the crown, and that while the occupants of the stool may come and go, the stool goes on for ever."

But assuming without admitting that Document NO. AC 8780/33 is the deed of Nii Adja Kwao II and not the James Town Stool, would the nullification of his enstoolment imply the nullification of that deed?

As a general rule where something is declared a nullity, the declaration has the rippling effect of contaminating that thing ab initio. But this is not always the case, as each situation has to be determined in its own peculiar circumstances. For example, article 1(2) of the 1992 Constitution of Ghana renders null and void any law inconsistent with any provision of the Constitution. An existing law which cannot co-exist with a provision of the Constitution may thus be declared void. But such a declaration does not render void, acts done under that law before the coming into force of the Constitution.

Indeed the law under certain circumstances by the doctrine of de facto sed non de jure upholds the validity of acts of persons and officers in positions or authority, whose office authority or appointment under which they performed those acts, is later found to be invalid. In the USA case of Norton vrs. Shelby Country (1886) 118 US 425 at 444, the doctrine was stated thus:

"where an office exist under the law, it matters not how the appointment of the incumbent is made, so far as the validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions .... the official acts of such persons are recognised as valid on grounds of public policy and for the protection of those having official business to transact."

A review of the earlier authorities of this doctrine can be found in two masterly judgments of State vrs. Carroll (1871) 38 Conn. 449 or 9 AM 409 (Supreme Court of Connecticut, USA), and In re Aldridge (1875) 15 NZLR 361 Court of Appeal of New Zealand). The doctrine is also discussed in an article entitled De Facto Officers by Dixon J (later Chief Justice of Australia) in the publication Res Judicata (Melbourne 1940) Vol. 1. pp.285 - 292. The rationale for this doctrine was stated by Butler CJ at page 432 in State vrs. Carroll (supra) as follows:

"the de facto doctrine was introduced into the law as a matter of policy and necessity to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of that office without being lawful officers."

In the English case of Scadding vrs. Lorant (1851) 3 HLC 418, the House of Lords applied this doctrine to an administrative authority so as to uphold a rate levied by a vestry although a member of the vestry men had not been duly elected. On the competence of those who had not been duly elected, Lord Truro LC said at page 448:

"With regard to the competence of the vestrymen, who were vestrymen de facto, but not vestrymen de jure, to make the rate, your Lordships will see at once the importance of that objection, when you consider how many public officers and persons these are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands".

In Waterloo Bridge vrs. Cull (1859) 1 E & E 245, the English court relying on this doctrine upheld a distress levied by a collector of land tax who did not have the residential qualification required for his appointment. The same doctrine was applied in Margate Pier Co. vrs. Hannam (1819) 3 B & Aid 266 to uphold a distress warrant granted by a magistrate who had not taken the necessary judicial oath. Again in Buckley vrs. Edwards (1892) AC 387, and In re Aldridge (supra) the doctrine was applied when the appointment of a New Zealand Supreme Court Judge was found to be invalid.

The cases indicate that the doctrine applies where the person or officer, the validity of whose acts are in issue, has "colourable authority". That is, he has some colour of title to the office or appointment under which he acted. Thus in Rex vrs. Bedford Level Corporation (1805) 6 East 356 where the registrar of the Bedford Level Company employed a deputy to register land titles within the level, it was held that registrations effected by the deputy after the death of the registrar was known, were invalid: the deputy's authority expired on the death of his principal, and once the death was generally known the deputy could not be taken to have any colour of authority to act. Lord Eenborough CJ said at page 368:

"An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law."

It follows that where the circumstances giving rise to the defect on the appointment or office are notorious, the doctrine does not apply. So in Adams vrs. Adams (1970) 3 All ER 572 a divorce granted in 1970 by a Rhodesian judge, appointed under the unconstitutional Rhodesian regime (UDI) established in 1965, was held to be invalid in England, since it was notorious in both Rhodesia and England that the Rhodesian regime had been declared unlawful by Act of Parliament and order in council. Therefore the Rhodesian judge who granted the divorce had no colour of title to his office in the eyes of the law.

The rejection of the doctrine in Adams vrs. Adams (supra) was heavily criticized by Lord Denning in Re James (an insolvent) (1977) 1 All ER 364 wherein he concluded that Adams vrs. Adams was wrongly decided.

The de facto doctrine has a long history and had been applied to a wide variety of officers. It was even said to have been applied to the English monarch, so that it might validate acts done in the names of kings whose title to the throne was considered illegitimate and who were kings "in fact and not in law", (the quoted words are from the Act of 1461 which on the accession of Edward IV removed doubts as to the judgments given in the reigns of Henry IV, Henry V and Henry VI, then considered usurpers).

In Ghana, the doctrine was applied, without specifically mentioning it, in Nartey vrs. Attorney General & Anor. (1996-97) SCGLR 63 wherein the Supreme Court upheld the validity of the judgment and acts of the judge whose continuous stay in office after a certain date was found to be invalid. The Court held that in the interest of public policy and in order not to create hardship and confusion the judgments and functions performed after that period were of full force and effect.

Now the import of the de facto doctrine is that the public must be able to rely on the acts of officers or persons in authority so long as there is no reason to suppose that such persons are not validly appointed. It is thus a very useful and sane doctrine. However the conditions for its invocation will depend not entirely on general principles but on the peculiar circumstances of each case, taking into consideration the interests of the public, the rights of third parties and above all, the justice of each situation.

In the instant case, the office of a chief is the foundation of our traditional rule and culture. The colonial governments recognised and guaranteed the institution. And each of the post-independence Constitution of Ghana guaranteed it. In the case of Nii Adja Kwao II his status as James Town Mantse was even recognised and fortified by the then Government with the enactment of LN 201 of 1959 of 1st August 1959. It reads:

"The enstoolment of Mr. Samuel Eric Golightly Odartei Thompson otherwise Nii Adja Kwao II as James Town Mantse is recognized and any person failing to recognise Mr. Samuel Eric Golightly Odartei Thompson otherwise Nii Adja Kwao II as the enstooled James Town Mantse Commits an offence against the chiefs (Recognition) Act 1959 and shall be liable accordingly."

LN 201 of 1959 did not therefore merely recognize Nii Adja Kwao II as James Town Mantse, but also made it an offence for anyone to deny him such recognition. He was thus portrayed to the whole world as having legal authority to act as the James Town Mantse. Consequently since in 1973 when he executed Document No. AC 8780/73 on behalf of the James Town Stool, the said LN 201 of 1959 had not been set aside, he had colourable authority to act and execute the document as James Town Mantse. And the invalidation of his enstoolment in 1983 by the National House of Chiefs, can in no way invalidate what he did at a time he had legal authority to do under LN 201 of 1959.

Thus if event the deed of AC 8780/73 is that of Nii Adja Kwao II and not the James Town Stool, the doctrine of de facto is applicable to save the validity, not only of the deed but the acts he performed during the period.

Thus which ever way one looks at it, the contention of the Lands Commission is unfounded and indeed, subversive of the quest for security in title to land.

In their statement of case, the Vanderpuye Estates Ltd., real estate developers, disclose that as at the 7th February 1990 when the Lands Commission wrote threatening to withdraw their concurrence to Document No. AC 8780/73, they had invested over ¢150 million in the development of that land into housing units for the public. What has now happened to such huge investment by such threats from the Lands Commission, is anybody's guess.

It cannot be doubted that no investor in real estate development would be willing to sink his investment into such venture if he gets to know that the Lands Commission of all national institutions, can behave in the way they did in this case. Let's hope we have no more of this.

As pointed out earlier, the claim of Vanderpuye Estates Ltd. was in respect of Document No. AC 8780/73 and not the 28th July 1976 deed. But the High Court in its ruling, affirmed by the Court of Appeal, granted mandamus in respect of the two deeds. This ought to be and is hereby corrected by confining the order of mandamus to only the Document No. AC 8780/73.

Subject to this correction, I dismiss the appeal and affirm the judgment of the Court of Appeal.

MS. AKUFFO, J.S.C.

I agree

COUNSEL

Nii Amponsah for the Respondent

Mrs. F.C. Quansah, Chief State Attorney for the Appellants

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