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Fiaklu v. Adjiani adn Another
[1972] 2 GLR 209.
In the Court of Appeal
5 June 1972

Appeal from a judgment of the High Court, Accra, wherein the plaintiff's claim for a declaration of title to a land situates at Kokomlemmle, Accra, was dismissed on the ground that his title was defective and invalid. The facts are sufficiently set out in the judgment of Sowah J.A.

This is an appeal from the judgment of the High Court, Accra, Which dismissed the plaintiff's claim for a declaration of title to a piece of land in Kokomlemle on the premise that his title was defective, invalid and incapable of sustaining the relief's sought.

The facts of the case were extremely simple. By a deed of conveyance dated 15 February 1952, the Korle priest acting ``with the knowledge concurrence and consent of the principal elders and members of the said Korle We the family'' made a grant by way of a gift lf a piece or parcel of land, a portion of which was the subject-matter of this suit to one Kodjo Sodole. The Korle priest was described in exhibit X as being ``seised at date hereof for am estate in fee simple free from all encumbrances and is otherwise well and truly entitled to the land hereafter described.'' The conveyance was executed by the Korle priest and attested to by some of his elders. By another deed of conveyance dated 11 November 1952, Kojo Sodole purported to transfer his title to the plaintiff herein, went into possession, built a swish building and planted coconut trees on the land.

About 1962 the plaintiff observed that building operations were being carried on and his inquiries disclosed that the defendant was the person disturbing his quiet enjoyment of the land. Accordingly he caused a writ to issue against the defendant claiming:

`` a declaration of title to all that piece of parcel of land situate, being and lying at south west Kokomlemle-Accra and which was conveyed in fee simple to the plaintiff as purchaser for value, vide instrument No. 19/ 1953 in the Deeds Registry of 3 January 1953;
one hundred pounds (£G100) damages for trespass to the said land: and
perpetual injunction retraining the defendant, his agents, and/or servants from committing further acts of trespass to the said land.''

The defendant's version was that in 1962 he approach the Korle priest, the Gbese and Ga stools and offered to purchase the disputed land which was vacant, unoccupied and weedy. After negotiations, he obtained a conveyance froom the three stools and proceeded with his building. He denied finding any swish building on the land except numerous coconut trees in the area which were not confined to the land in dispute. There was also nothing indicating a prior occupation by any person.

The pleadings of the parties recited the facts as stated above. Upon an application by the Korle priest, he was made a party to the suit as a co-defendant; but nothing in my view turned upon the joinder. The parties joined issues and it is of some interest to note that issues were settled by counsel for the plaintiff as follows:

`` Whether :
The plaintiff or the defendant was seised in fee of the land the subject-matter of this claim at the commencement of this action;
The plaintiff or the defendant has the better title to possession of the land dispute;
The plaintiff is entitled to the reliefs claimed in his writ.''

The above were the issues which the learned judge was invited to pronounce upon and it has not been urged that the learned judge did anything but pronounced, in my view, correctly upon them.

In this court however, several grounds of appeal have been raised on matters unrelated to the issues before the learned judge. The age-old argument was revived, namely, that by ancient custom the Korle priest was the proper authority to grant Kokomlemle lands and that the roles of the Gbese and Ga stools were restricted to confirming such grant as were by the Korle preist.

The short answer to this argument is that this question had been the subject-matter of continuous litigation during the past three decades; and the role, status and powers of the Korle priest in relation to Kokomlemle lands have clearly and unequivocally been defined. Whatever be the content of a custom, if it becomes an issue in litigation and the courts are invited to pronounce thereon, any declaration made by the courts supersedes the custom however ancient and becomes law obligatory upon those who come within its confines. To the extent therefore that a declaration is inconsistent with the part of the content of a custom, that part in my view is abrogated.

The argument of counsel that in spite of the judgments in the case of Golightly v. Ashirfi (1955) 14 W.A.C.A. 676; affirmed [1961] G.L.R. 28 P.C., the Korle priest has continued making grants in accordance with ancient custom is untenable. It may well be that he had continued so to do. If he had, notwithstanding the judgments, that conduct would be fraudulent on his part. In any case he would be unable to pass valid title and the unwary purchaser would be in the same predicament as the present plaintiff. On this issue, reference ought to be made to the cases of Cobblah v. Gbeke (1947) 12 W.C.C.A. 294 and Golightly v. Ashrifi (supra). One of the questions which came up for determination by the West African Court of Appeal and the Privy Council in Golightly v. Ashrifi (supra) was who was the proper authority to alienate Kokomlemle lands and what was the position of the Korle priest; this was answered by Foster Sutton P. reading the judgment of the West African Court of Appeal at 681 as follows:

``On the third question as to who is the proper authority to alienate this lands, the learned trial Judge found that the Korle priest as the caretaker of the lands may make grants of lands to members of the stool for specific purposes, that is to farm or to build for the purpose of residence or trade. He also held that this right can only be exercised over land which is deemed to be unappropriated, but that if the land is sought to be mortgaged or sold outright the consent of the Gbese Manche and the Ga Manche must be obtained.''

And in continuation, Foster Sutton P. said at p. 682 that:

`` On a careful consideration of all the evidence consider that the Korle We or Stool are co-owners with the Ga and Gbese Stools. It is therefore a correct finding and one supported by evidence that the prior consent of the three entities Ga, Gbese and Korle, is necessary to an outright alienation of the lands in dispute.''

The Ashrifi case was a follow-up of the case of Cobblah v. Gbeke (supra) in which the Korle priest had endavoured unsuccessfully to obtain a declaration of the title to the Kokomlemle lands without the support of the Gbese and Ga stool lands. It seems to me that if he had title or an estate severable from the titles of the Gbese and Ga stools he would in the case at least have obtained a declaration defining it. He failed because he was opposed by the two stools.

The evidence before the learned trial judge in the instant case showed that the conveyance to Sodole was made after the judgment in the Ashrifi case (supra). There was also evidence that both Sodole and the plaintiff knew of the litigation and of the judgment. Such knowledge would be notice to the plaintiff and it was highly imprudent of him to accept a conveyance in the form drawn up in exhibit A. In any case the conveyance executed in favour of Sodole which was the root the plaintiff's claim for the declaration of the title could be impeached on three grounds. First, the conveyance purported to alienate the exclusive property of the Korle priest and his family. Both the recital and the operative part of it described the land as property which with the consent of his elders the Korle priest and his family. Both the recital and the operative part of it described the land property which with the consent of his elders the Korle priest could convey. The description is false and the operative part thereof would have no effect. Secondly, even if it is said that the form of the conveyance was wrong, and that the Korle priest was seeking to convey Ga stool lands, effect could not be given to the Korle priest's intentions. There had been no application for rectification of the conveyance; in any case Sodole was clearly a volunteer and having obtained an imperfect gift there was no equity to perfect it, at least not on the evidence before the court. Thirdly, if the Korle priest by the conveyance was seeking to make an outright alienation of the land in dispute he had first to obtain the consent of the Gbese and Ga stools. The evidence showed no such consent was obtained. Perhaps it is necessary to recall that the Korle priest is incompetent by himself and without the necessary consent to make an absolute grant of Kokomlemle stool lands even to a subject of the stool. In my view the conveyance to Sodole, a stranger, passed no title whatsoever and was void ab initio. Having held that the conveyance to Sodole was void and created no interest in the land, it does follow that the three entities could create an estate in the land in dispute to third parties when the proper formalities have been observed. The defendant therefore obtained a good title.

The learned judge, though holding that the defendant's conveyance was regular on the face of it and in my view the evidence showed that he had good title, refused to decree on the counterclaim. The failure of the learned judge has generated the further argument that since both conveyances were invalid he should have decided the rights of the parties on the basis of possession, that is to say, the earlier possession of the plaintiff ought to have prevailed. I do not think the learned judge's failure should be viewed in that light. His judgment sustained the validity of defendant's title and with the greatest respect, he ought to have decreed in his favour a declaration of title. The grounds on which he dismissed it, namely, that the defendant had claimed more land than he was entitled to under his conveyance, was untenable. With a little effort the area granted in the conveyance could have been ascertained and pronounced upon. In any case, he was only claiming the portion of the land covered by the conveyance. But there has been no cross-appeal and these comments are only meant to dispel the argument that the defendant's conveyance was said by the judge to be invalid.

Finally, the evidence adduced with regard to possession of the plaintiff was no meager, vague and unreliable that no rational judgment could be sustained upon it. It is for the reasons given that I will dismiss the appeal.

I have felt the greatest anxiety over this case, not because the issues submitted for decision were difficult, but because I am not entirely convinced that the conclusion which the learned judge arrived at and which I have decided reluctantly not to disturb was a just one.

The plaintiff, whom the learned judge described as a poor man, bought a piece of land from a man called Sodole in 1962. The latter gave him a deed of conveyance dated 27 October 1962 which in the land tenure of this country can only be evidentially of the sale. Sodole himself obtained a grant of the land from one Nomo Aryitey Cobblah, the Korle priest, who subsequently joined this action as a co-defendant. The said Cobblah also executed in favour of the plaintiff's vendor Sodole, a deed in which he conveyed the land as the property of the Korle We family.

The land in dispute is situate at Kokomlemle in Accra and is part of the land adjudged in the case of Golightly v. Ashrifi (1955) 14 W.A.C.A. 676; affirmed [1961] G.L.R. 28, P.C. to be the joint property of the Ga, Gbese and Korle stools. It was held in this case that an outright alienation of Kokomlemle land or any portion of it, can only validly be made by the Korle stool with the prior consent of the Ga and Gbese stools. The Ashrifi case (supra)did not decree that the consent should take any particular form, but it would seem that neither Sodole nor the plaintiff sought nor obtained the consent of either the Ga or Gbese stools.

But it seems clear that Sodole put the plaintiff in possession of the land as indeed he put one Samuel Bambo Ameyaw to whom he sold the adjoining land. The plaintiff caused this land to be registered in the deeds registry and the certificate of search which he obtained, shows at that time, the land was not affected by any other deed. According to the plaintiff, he maintained his possession of the land planting on it a number of coconut trees and at much later date, erected a fence on the land, granted permission to a teacher to construct a shed on it. The plaintiff said some time in 1962, the defendant entered upon the land, broke down the shed and himself commenced building on the land. By the date this action was heard, the building was completed and occupied. As attempts to get the dependent to desist from his course of conduct was unavailing, the plaintiff sought the assistance of the court and asked that he be declared the owner of the land. He also asked for damages and perpetual injunction.

The defendant put the plaintiff's title in issue. In his pleadings, he claimed ownership of the land and put the source of his title on a conveyance by ``Numo Ayitey Cobblah, Korle priest, and Nii Okai Pesemaku III Gbese Manche and Acting Ga Manche for and on behalf of the Korle Gbese and Ga stools.'' But his own knowledge of the actual owner of the land and the person who is capable of granting it, curiously coincides with the plaintiff's. he said in evidence, ``I got the land from Korle Wulomo [priest]. I bought the land. Before buying the land, one Mr. Plange who is one of the Korle Webii took me to the land. This was in 1962.'' When cross-examined, he still put the title in the Korle Webii. He said:

``I went to the Korle Webii that I wanted land to buy and Mr. Plange took me. I know that Mr. Plange is very prominent member of the Korle Webii. He said that the land was owned by the Korle priest.''

Like the plaintiff, the defendant was also apparently unaware that the prior consent of the Ga and Gbese stools must be obtained to alienation by the Korle stool. He certainly did not seek the prior consent of either of these entities. And the person from whom he claimed he bought the land is the self-same person who ten years previously had conveyed a larger area of land of which the disputed portion forms part to Sodole. The self-same Korle priest signified his concurrence to an outright alienation of this land by Sodole to the plaintiff and signed the conveyance as a witness.

The position is that the Korle priest alienated or concurred in the alienation of this land to the plaintiff who entered and remained in possession undisturbed for ten years. Thereafter, the self-same vendor, now in conjunction with the Gbese stool, alienated that same land to the defendant. All things being equal, in a contest between the plaintiff and defendant as to the ownership of this land, there should be no difficulty in holding that as a matter of justice and good sense, the plaintiff has shown a better title to the land than the defendant. But we are asked to sustain the judgment which decides the issue of title the other way round because it was laid down in the Ashrifi case (supra) that for the land to be sold outright the prior consent of the Gbese and Ga Mantse must be obtained. It is said while these have not been obtained by plaintiff, they were obtained by the defendant. The Korle priest joined this action on the part of the defendant to make this contention. In view of the entirely ignoble role he played in this matter, this plea sound ill in his mouth. Whatever imperfections there might be in the plaintiff's title, the co-defendant ought not to be heard to question that title. He should be held estopped by his own deed from contending that the plaintiff's title was other than perfectly good.

But the issue of title has to be decided not as between the plaintiff and co-defendant, but as between the plaintiff and defendant. Before considering this question, it is necessary to dispose of an argument raised against the plaintiff's evidence of possession. It is urged that the evidence of possession led by the plaintiff was meager and was so vague as to be unreliable. I respectably disagree. If this issue were to be decided only on the conflicting testimony of the parties on possession, I should feel no difficulty in finding for the plaintiff. The plaintiff swore that when he bought the land, he planted coconut trees on it and later caused it to be fenced. His witness Kuavuavu confirmed this and said he in fact planted the trees. They had began to bear fruit some time before the defendant entered upon the land. That the plaintiff must have been in possession of the land, was also sworn to by S. B. Ameyaw who owns the adjoining land and who actually built on it. Like the plaintiff, he also bought the land from Sodole and in the same year as the plaintiff. He said, ``the plaintiff bought his plot the same year as myself. I have seen him coming to the land since.'' The emphasis is mine. That this must be so, is shown by the prompt and spontaneous way in which he reacted when the defendant first entered the land. He wrote promptly to warn him off the land and when he persisted, he sued him in a name which turned out to be wrong. When he got his correct name, he issued a fresh writ and unsuccessfully sought an injunction to restrain him from building on the land. That conduct strikes me as the natural reaction of person with a real not imagined grievance. There is also evidence that shortly before the defendant's entry on the land in 1962, the plaintiff caused the land to be fenced: As against this, the defendant's evidence in so far as it related to possession, was that:

``Before buying the land, one Mr. Plange who is one of the Korle Webii took me to the land. This was 1962. I saw nothing on the land when I went on it. Plange showed me land; it was measured. I put a building on the land.''

When cross-examined he said, ``I never went on the land before February 1962'' If the evidence of any of the parties can be stigmatized as vague on the issue of possession, it is clearly the defendant's. The plaintiff has led as satisfactory evidence of his possession of the disputed land as anyone might do in this country. The learned judge saw nothing to criticize about the plaintiff's evidence of possession. I see nothing either. But the plaintiff's possession is good against the whole the whole world but the true owner. Accordingly, if the evidence shows that the defendant's title avails against the plaintiff's than the plaintiff's superior evidence of possession amounts to nought.

As I said, the Ashrifi case (supra) decides that a valid title to the Kokomlemle lands can only be made by the Korle stool with the prior consent of the Ga and Gbese stools. The evidence shows that neither of the parties knew this to be the position but the Korle priest did. The judgment of the Land Court, Accra, in Ashrifi v. Golightly (1951) D.C. (Land) '48-'51. 312 was delivered by Jackson J. on 31 May 1951. The grant to Sodole was made on 25 February 1952 and the latter's grant to the plaintiff was made in October of that year. The Korle priest through fully congnisant of the terms of that judgment and collaborated with the Ga and Gbese stools in making that grant. In my opinion, the villain of this case is the Korle priest and he richly deserves to be condemned in damages to the plaintiff. But in as much only the Korle priest made the grant to Sodole by whom an outright alienation was made to the plaintiff, the latter's title cannot be good. Mr. Mettle, however, argues that the plaintiff's title was, at the worst, only voidable because according to custom, grants are in fact made by the Korle priest and that the Ga and Gbese Manches are mere confirming parties. He says the plaintiff has occupied this land for ten years and neither the Ga nor Gbese stools sought to avoid the grant. That contention may well represent the true customary position. Indeed it obtained support from the evidence of the Gbese Mantse who testified that, ``the Kokomlemle lands belong to the Ga, Gbese and Korle stools. These lands are granted by the Korle priest. The Gbese mantse and Ga mantse confirm the grant.''

The decision of the courts in the Ashrifi case (supra) is somewhat different and is, in a sense more favourable to the stools than what they themselves conceived to be the custom. It says, the ``prior consent'' not subsequent ratification of these two stools was vital to a valid alienation. It is possible that this decision isolates the intellectual conception of the custom from what in fact happens in practice or what is the recognized usage of the parties. And to this extent, one may see the force of and feel sympathy for Mr. Mettle's contention. It is however imposible to accede to it without driving a coach and four through the clear ``holdings'' in the Ashrif case. But I think myself that had the issue not been complicated by the subsequent grant with all the ``Consents'' to the defendant, I should be prepared to sustain the plaintiff's title, if the Ga and Gbese stools had, subsequent to the grant, consented to it. I should not be deterred from validating the title on the purely technical argument that the Ashrifi case (supra) enjoins ``prior'' not ``subsequent'' consent.

Whatever sympathies one might feel for the plaintiff, it is impossible to dig any holes in the defendant's title. Although he conceived himself as acquiring title only from the Korle priest, the title deed which he produced in evidence, shows that all the three co-owners, namely the Ga, Gbese and Korle stools joined in making the grant to him. There may be some question whether the consent of the Ga stool was properly obtained in the way its role was recited in the conveyance, but no point was made of that by the parties. Accordingly, as long as the Ashrifi case (supra) stands, the defendant's title cannot be faulted. I think therefore that the plaintiff's evidence of possession, impressive through it was, must yield to the defendant's superior title. Although the plaintiff could, with justice, invoke the equitable doctrine of estoppel against the co-defendant, the facts do not warrant the invocation of any equitable principles to silence the defendant from relying on his superior title.

It follows therefore that the plaintiff has failed to show himself entitled, as against the defendant, to the reliefs which he sought. And as that was the decision at which the learned judge arrived, albeit reluctantly, I cannot differ from him. Sorry through I am, I concur that this appeal be dismissed. In the special circumstances of this case, we would be doing right if we ordered the Korle stool to pay the costs of both parties.

I also agree

Appeal dismissed.
S. Y. B.-B

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Josh DuBois 2004-12-01