JELR 66027 (CA) 1

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[FIND RATIO DECIDENDI, SIMILAR AND CITING CASES, AND TREATMENTS]

MECHANICAL LLOYD ASSEMBLY PLANT LTD

V.
NARTEY
(1985) JELR 66027 (CA)

COURT OF APPEAL · JULY 31, 1985 · GHANA

CORAM

EDUSEI JA,EDWARD WIREDU JA,OSEI-HWERE J.A

OSEI-HWERE J. A.

Inside the fork of the Accra-Aburi and Accra-Dodowa roads lies immediately a stretch of land
called Fafraha which is so identified by a village of that name. The settlers at this village are
natives of Labadi, more particularly of the Agbawe (or Agbahe) family. Fafraha is not the only
village settled by this family. They are also settled at the nearby village of Adentan and control the
Adentan land. In spite of this “diaspora” they firmly retain their umbilical cord with the Agbawe
family at Labadi from which they sprung. These lands, without dispute, form part of what, in legal
terminology, has come to be known as Labadi rural lands.

At the time that the events which culminated in the lawsuit now on appeal before us unfolded, Nii
Okpoti Adjaye Commey (or Nii Adjaye Komey Okpoti, or whatever permutation you will) was
decidedly the head of the Agbawe family at Fafraha. He also claimed the traditional status of
“Mantse” of Fafraha. He gave evidence as the fifth plaintiff witness and he will hereafter be so
referred to. Atofotse Tetteh Nukpa (or Onukpa) was also the head of the Agbawe family at Labadi.
The head of this same family at Adentan was Nii Adjei Kplen II.

From the horse’s one mouth we derive the benefit of the relationship that Fafraha Adentan,
Agbawe, Kplenwe stand to each other. In his evidence-in-chief the fifth plaintiff witness said that
Fafraha and Adentan came from the same house at Agbawe but that they have different chiefs and

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also that the head of his quarter was Atofotse Tetteh Onukpa. The following extracts are gleaned
from his cross-examination.

Q The people of Adentan hail from Kplenwe?

A Yes.

Q The head of family of Kplenwe who is also the chief of Adentan is called Nii Kplenwe II

A Yes.

Q Kplenwe and Agbawe (are) from one house?

A It is the same body.

Q And the principal head of this unit is Nii Atofotse?

A He is called Atofotse. He looks after the house.

Q The lands at Fafraha and Adentan all belong to this family whose head is Atofotse?

A No

Q (Atofotse Tetteh Onukpa) took precedence over you when he was alive?

A He looked after the house at Labadi and I took charge of the lands at Fafraha.

Q The lands you took charge of belonged to the Agbawe family?

A Yes.”

It is against this unfolding scenario that between 1973 and 1976 the plaintiff, who styled himself as
an international croupier instructor, adventured on his land acquisitions. In 1973 and 1974 he
acquired three separate plots of land at Adentan. These were covered by deeds of conveyance
tendered as exhibits 1, 2, and 3. In all these documents the vendors were Nii Adjei Kplen II and
Atofotse Tetteh Onukpa and they described themselves as “heads and lawful representatives of
the Agbawe family of Labadi.” In 1976 he made his most ambitious acquisition. He was granted
9.12 acres of the Fafraha land. This is covered by exhibit B in which the vendor is Nii Komey
Okpoti, head of Agbawe family of Fafraha.

Barely one month after the plaintiff had acquired his grant in exhibit B a confrontation to his title,
like the biblical mustard seed, germinated. This was afforded by the lease of a chunk of the
Fafraha land from Nii Anyetei Kwakranya II, Labadi Mantse, to Mr Rexford Aye Darko, lately the
executive chairman of the defendant-company. The land affected by this lease approximated
22.070 acres and it entirely (almost) consumed the land acquired by the plaintiff. Following this
lease the defendant-company caused their signboard to be affixed to the land. This attracted the
eagle eyes of the fifth plaintiff witness who commanded it to be uprooted and carried triumphantly
home to him like the trophy of war which he held in ransom. True to obvious expectation the
defendant-company paid the price on its head.

This was effected when they re-negotiated with the Agbawe family to purchase the same plot of
land. A deed of conveyance was executed on behalf of the defendant-company and the vendors

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were Nii Adjei Komey Okpoti and Atofotse Tetteh Onukpa who were styled in the deed, exhibit F,
as “heads and lawful representatives of the Agbawe family of Fafraha.” The stated consideration for
the sale is ¢70,000 paid by the defendants. As noted before, the land acquired by the defendants
embraced the land which the fifth plaintiff witness had already sold to the plaintiff. That was not all.
The fifth plaintiff witness had also executed similar conveyances in favour of one Agnes Owusu
and one John Koomson around the same time as the plaintiff’s. Their various land acquisitions
were also eaten up by the proposed grant to the defendants. Wherefore, ostensibly to give
assurance to the defendants of the security of the proposed grant, both the fifth plaintiff witness
and his co-head of family, Atofotse Tetteh Nukpa, made a joint declaration in favour of the
defendants to the effect that the respective deeds of conveyance to the plaintiff, Agnes Owusu and
John Koomson had lapsed and fresh proposals had been noted in favour of the defendants. This
declaration, it must be noted, ante-dated the execution of the deed of conveyance disposing of the
land to the defendants, on 14 August 1979, exhibit T.

After they had executed exhibit F, the fifth plaintiff witness and Atofotse Tetteh Nukpa, who again
signed themselves as “joint-heads of Agbawe family of Fafraha, Labadi”, wrote to the Chief Lands
Officer inviting him to lapse the three documents mentioned before in favour of the defendant-
company. They, at the same time, expressed their intention to replace the owners of those plots,
viz the plaintiff, Agnes Owusu and John Koomson with plots around the same area. This letter was
dated 31 July 1979 and, ex facie, it was copied to the plaintiff, Agnes Owusu and Major John
Koomson. The plaintiff said that his copy never got to him.

On the plaintiff’s part he came into open confrontation with the defendant-company on occasions.
The first time was in 1978 when he drove away the workers of the defendants from the land. The
solicitor of the defendants wrote to warn him that they had acquired the land from the La Mantse,
the proper owner. He reported to the fifth plaintiff witness who assured him that the land was family
land and not stool land. He went to the Lands Department to find out the true position and it was
confirmed that the La Mantse had no “jurisdiction” over that land.

The second confrontation was in 1979. In the plaintiff’s own words this was how it came about:

“Some time in 1979 I went to the land and found Mechanical Lloyd workers again on the
land. I had fenced the area with barbed wire, and had planted cassava, maize and okro on
the land. They were scraping part of the land with a caterpillar bulldozer. I questioned them
again and they said they now had a document on the land. I went again to the chief. He said
he had no knowledge of the other people having a document on the land. I share boundary
with one Major John Koomson and one Mrs Agnes Owusu. Those are the only people I met
on the land. The chief remembered that Mr Okaekyiri brought a plan for Mechanical Lloyd
which he signed but he was sure it did not fall in my area. I went back to the Lands
Department. According to my search the plot which I bought in 1976 had been re-plotted in
the name of Mechanical Lloyd Assembly Plant.”

If the plaintiff’s testimony was true then it showed that the fifth plaintiff witness had a very short
memory about his other dealings with the land in favour of the defendants.

Following his search which revealed that the land he bought had been re-plotted in the name of the
defendants he petitioned to the Chief Lands Officer who caused his original plot to be re-plotted.
Before then the Chief Lands Officer wrote to the fifth plaintiff witness (copied to the defendants) to

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inform him, inter alia, that his purported grant of the plaintiff’s land to the defendants has been
deleted from their records as the said grant was null and void. In spite of the re-plotting of the
plaintiff’s land the defendants continued to stay on the land and it was for that reason that the
plaintiff launched his action against the defendant-company claiming against them;

(a) Declaration of title to the said piece or parcel of land described hereunder.

(b) ¢250,000 damages for trespass.

(c) Recovery of possession.

(d) An injunction restraining the defendants their servants or agents or both from entering upon the
said land

In his statement of claim the plaintiff disclosed his root of title as deriving from the fifth plaintiff
witness. He also averred that he went into possession and built a farm house, fenced the land and
planted food crops. He complained that the defendants wrongfully entered the land, demolished
the farm house, destroyed the crops on the land and damaged the barbed wire and also scraped
the surface of the land. The defendants’ and amended defence projected a solid rampart which
deserves quotation, particularly the following paragraphs:

3. Paragraphs 2 and 3 are denied and in further answer the defendants state that the land in
question is Labadi rural land and so it is only the Labadi Mantse who can make valid grants of
such lands; in the circumstances therefore the grant obtained by the plaintiff from the head of the
Agbawe family at Fafraha is null and void and of no legal effect.

4. In further reply to paragraphs 2 and 3 of the plaintiff’s statement of claim and, in the alternative,
the defendants aver that if the land in question is Labadi quarter land then since the Fafraha lands
are owned jointly by the Agbawe families of Fafraha and Labadi on which there are two joint-
heads, Nii Adjei Okpoti Commey and Atofotse Tetteh Nukpa, the grant by Nii Commey Okpoti
alone without the knowledge, consent and concurrence of the other joint-head of family cannot give
valid title to the land.

5. The grant to the plaintiff by the one head of family of the Agbawe family of Fafraha alone is
therefore null and void.

8. That paragraph 5 of the claim is denied and in further reply the late Rexford Aye Darko who was
then executive chairman of the defendant-company on 8 May 1976 obtained a leasehold interest in
the property from the La Mantse for and on behalf of the defendant-company (stamped No. AC
4233/76).

9. That it was further agreed between the defendant-company and the said late Rexford Aye
Darko, the then executive chairman, that he shall later transfer his interest in the land to the
defendant-company.

11. That the defendant-company in order to assure the title vested in the late Rexford Aye Darko
took a conveyance from the joint-heads of the Agbawe family of Fafraha and Labadi (registered
No. 4367/1979) and had cleared the land and exercised extensive acts of ownership on same
since the above two grants.

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12. A statutory declaration dated 6 August 1979 was executed by the joint-heads of the Agbawe
family of Fafraha and Labadi in which it was declared that the plaintiff’s title had lapsed.

13. On 31 July 1979 the joint-heads of families of the Agbawe family of Fafraha wrote to the Chief
Lands Officer and copied to the plaintiff to the effect that the joint-heads of family had re-entered
the land in question.

14. The plaintiff therefore has no interest since his interest, if any, had revested in the Agbawe
family of Fafraha and Labadi who had re-conveyed the land to the defendants.

15. The defendants deny paragraph 6 of the claim and further state that they are the owners in
possession of the land in question granted to them by both the La Mantse and the joint heads of
the Agbawe families of Fafraha and Labadi and further that the land described by the plaintiff does
not fall within the defendants’ land.”

Many issues raised in the summons for directions for trial, of which the following are salient for the
purpose of this appeal, are whether or not:

(a) The grant made to the plaintiff is null and void;

(b) The La Mantse is the only person who can make valid grant of Fafraha lands;

(c) The Agbawe family of Fafraha has got two heads of family;

(d) The plaintiff’s grantor could grant the land to the defendants when he had already divested his
interest in the land.

The suit initiated by the plaintiff was hotly contested and in the end the plaintiff was given
judgment. By an unfortunate misconstruction of words the learned trial judge nullified the whole
grant of the 22.070 acres of land made in favour of the defendants. He further awarded damages
for trespass in the sum of ¢150,000 and ¢25,000 costs.

Aggrieved by this decision the defendants have appealed to this court. In their notice of appeal
they set down, compendiously, nine grounds of appeal. Their solicitors subsequently filed
supplementary as well as additional grounds of appeal which were distinguished by their
amplitude. A galaxy of counsel appeared before us to prosecute the appeal on behalf of the
defendants and we could well discern their joint efforts in the preparation of these grounds of
appeal. We need not set them out. To maintain continuity of nomenclature the defendant-appellants
will be referred to hereafter as the defendants and the plaintiff-respondent as the plaintiffs.

So far as we can make out, the judgment is built upon the following reasons: The land was settled
by the fifth plaintiff witness’ father over 100 years ago; the Agbawe family of Fafraha had always
had the right to alienate land at Fafraha; the La Mantse had never exercised that right; in a
previous litigation by the La Mantse involving a larger area of land (including Fafraha, Adentan and
Oyarefa) the fifth plaintiff witness’ predecessor had given evidence that the land was Labadi stool
land; (in spite of this) when the La Mantse sought to exert his right to the land the head of the
Agbawe family caused his lawyer to file a public notice that the Agbawe family had the right of
alienation over the Fafraha land; the La Mantse who was aware of this public notice took no steps
to exert his rights over the land and he has taken no legal steps in that direction.

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Assuming, as found by the trial judge, that the Fafraha land is owned by the Agbawe family the
question is: who is competent to alienate this family land? Is it the fifth plaintiff witness alone or is it
the fifth plaintiff witness in conjunction with Atofotse Tetteh Nukpa? This question, although a live
issue at the trial, was completely deployed from the trial judge’s consideration. It was accordingly
raised as a ground of appeal.

The plaintiff’s own deed of conveyance, exhibit B, should have put him on his guard as to the
competence of his “vendor”, at least. That document stated that the conveyance was with the
consent and concurrence of the principal members of the family whose consent and concurrence
are necessary by customary law for the valid alienation of any land of the family and which
consent and concurrence were to be testified by some of the said principal members witnessing
the execution of the document. The document was signed by the fifth plaintiff witness alone. It was
never so witnessed by any principal member of his family. One Annang Okpoti signed it only as the
interpreter of the document to the fifth plaintiff witness. Annang Okpoti is only a nephew to the fifth
plaintiff witness and he led the plaintiff to the fifth plaintiff witness. The plaintiff’s document,
therefore, even at that stage, stood to be voided.

But the more poignant attack on his document is that it was never executed by the other joint-head
of the Agbawe family. There was abundant evidence before the court to prove that Atofotse Tetteh
Nukpa was, in his lifetime, one of the joint-heads of the family. The fifth plaintiff witness himself, as
noted previously, admitted that Atofotse was the principal head of his family. He also admitted that
the Fafraha land belongs to the Agbawe family. It must inescapably follow from these admissions
that he cannot alienate any family land over and above the head of Atofotse Tetteh Nukpa.

The indispensability of Atofotse Tetteh Nukpa in granting their family lands was evident in other
ways. In regard to the Adentan lands it was sufficiently proved that even in the grants to the plaintiff
himself the donors were Nii Adjei Kplen II and Atofotse Tetteh Onukpa, the heads and lawful
representatives of the Agbawe family of Labadi—see exhibits 1, 2 and 3. The plaintiff could not
pretend that he was unaware of the standing of Atofotse Tetteh Onukpa in the family. At any rate,
he was bound by the recitals contained in those deeds. If it is true that he was a necessary party in
the alienation of the Adentan lands which is claimed by the Agbawe family then there must be
shown very good reasons why he must be excluded from participating in the disposition of Fafraha
lands. No good reason was shown by the fifth plaintiff witness except for his bald claim that he
alone has the right to dispose of those lands.

To be sure, there was evidence that on 21 November 1975, 23 July 1976 and 25 August 1976 the
fifth plaintiff witness alone made generous grants of lands to five persons whose documents are
covered by exhibits M1 to M5. Those documents, like the plaintiff’s exhibit B, indeed recited that
the concurrence and consent of principal members of the family were necessary and that the
concurrence and consent were to be testified by some of the principal members witnessing the
execution. Apart from exhibit M5 the other documents do not seem to have been so witnessed and
they stand on the same footing as exhibit B.

Be that as it may, by reason of the documents executed by the fifth plaintiff witness and Atofotse
Tetteh Onukpa in connection with their sale of the land to the defendants wherein they declared
themselves as joint-heads of family entitled to dispose of their family lands, the said declaration
cannot now be reneged by the fifth plaintiff witness. Indeed, he will be estopped by conduct from
denying the authority of Atofotse Tetteh Onukpa. Pickhard v. Sears (1837) 6 Ad and El 469

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adumbrated the rule on which this type of estoppel is based. This rule was stated by Donman C.J.
at 474 as follows:

“[W]here one by his words or conduct wilfully cause another to believe the existence of a
certain state of things, and induces him to act on the belief so as to alter his own previous
position, the former is concluded from averring against the latter a different state of things as
existing at the same time.”

The policy justification for the rule, which this court conjectured in Sasu v. Nyadualah [1973] 1
G.L.R. 221, C.A. is that a party should be held to any act or statement which it would be
unconscionable to permit him to deny.

At the prospect of grabbing 70,000 fresh, crisp and crackling cedis the fifth plaintiff witness was
prepared to recognize the authority of his overall head of family and sell the land jointly with him.
Upon his assurance of joint-ownership the defendants invested a collosal sum of money (in the
estimation of those days) to acquire the land. He was estopped, at the trial, in telling an
inconsistent tale to the prejudice of the defendants. There must be an end to the dispute because
this type of estoppel is now firmly placed on a statutory basis. I here refer to section 26 of the
Evidence Decree, 1975 (N.R.C.D. 323). By that section the truth that both the fifth plaintiff witness
and Atofotse Tetteh Onukpa were the joint-heads of family who could make grants of Fafraha lands
was conclusively presumed against the fifth plaintiff witness at the trial.

In so far as the trial judge’s finding seemed to suggest that the fifth plaintiff witness alone could
alienate lands purported to belong to the Agbawe family, we find that this flew in the face of the
overwhelming evidence proffered at the trial. The evidence should rather have supported a finding
that such a disposition could validly be made only by the two joint-heads of family acting together.
Where the trial judge failed to consider the whole of the evidence before him and he was thereby
misled in making a wrong conclusion of fact, an appellate court had the duty to arrive at its own
conclusion on the evidence—see Tonazzi v. Brunetti (1953) 14 W.A.C.A. 403.

The stand of the fifth plaintiff witness at the trial oscillated between two poles, ie an
acknowledgement that the Fafraha lands belong to the Agbawe family and the presumptuousness
which made him look on the lands as his own. It was on account of this latter stand that he made
the grants to the plaintiff and to those named in the M series of exhibits without any reference to,
and concurrence of, any principal member of his family. He also seems to have kept the huge sums
of moneys he collected from those vendees as his own booty. Where family lands are held by two
joint-heads an alienation by one of them purporting to be with the consent and concurrence of the
principal members of the family is void ab initio.

But this last error is worse than the first. And I refer, with due deference, to the cavalier manner the
title of the Labadi stool vis-à-vis its rural lands was treated. As the trial judge rightly found, in a
1932 suit in which he ranged himself alongside the La Mantse, the predecessor of the fifth plaintiff
witness (Adjaye Komi) had given evidence against the interest of the Agbawe, family. Precisely, he
testified that the Fafraha land does not belong to the Agbawe family of Labadi but rather to the
Labadi stool. He also reasserted under cross-examination that the Agbawe family occupy the land
and hold it for the stool. In the face of the recognition by the predecessor of the fifth plaintiff
witness of the Labadi stool’s authority over the Fafraha lands, the court below ought to have
viewed the evidence of the fifth plaintiff witness in the light of his predecessor’s testimony.

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The courts have, in several decisions, pronounced on the customary law relationship of the Labadi
stool with its rural or village lands. The case of Boi Owusu v. Manche of Labadi (1933) 1 W.A.C.A.
278 concerned compensation for the acquisition by the government of two small plots of land
situate near a village called Nkwantanang, some ten or eleven miles from Accra on the Dodowa
road. The amount paid as compensation was small and the subject matter of the proceedings, on
the face of it, was consequently of little importance. But, as the West African Court of Appeal
observed, the rival claimants attached great importance to the proceedings because upon the
decision in that case rested the title to a very much larger area of land potentially a matter of
dispute between them. The appellate court found it proved that Labadi lands extend well beyond
Nkwantanang and that Fafraha, for instance, is further north than Nkwantanang. It also accepted
the fundamental story of the respondent that the lands in question (including Fafraha) were
acquired by conquest and they became Labadi stool lands. So that if there was occupation of
those lands it was not adverse to the Labadi stool but it was the occupation by Labadi people of
Labadi stool lands. The ratio decidendi of this case was that long and uninterrupted user of land by
subjects of a stool is not, in itself, sufficient to oust the title of the stool.

The decision in the above case should have silenced the pretensions and impertinence of the fifth
plaintiff witness who dared set up his title against the Labadi stool. The land granted to the
defendants was vacant stool land and the La Mantse had the absolute right to grant it to the
defendants.

The rejection by the trial judge of the deed of conveyance by the La Mantse to Rexford Aye Darko
evoked some argument. At the trial counsel for the defendants sought to tender it through the
second plaintiff witness, an official of the Lands Department. This was objected to by counsel for
the plaintiff without assigning his reason. The trial judge summarily sustained the objection and
rejected the document. We think that the rejection of the document was improper since the Lands
Department had dealt with that document and it should have been admitted for what it was worth,
at least. We do admit it in evidence as exhibit C.A 1.

The attitude of the Lands Department in their unilateral decision in deleting the plotting of the land
conveyed in the defendants’ exhibit F was unjustified. The Land Registry Act, 1962 (Act 122)
indeed lays down the procedure for resolving conflicting interests. This was never followed through.
By their default the defendants’ conveyance remains unregistered. Under the authority of Ntem v.
Ankwandah [1977] 2 G.L.R. 452, C.A we hold that exhibit F must be deemed to have been
registered as from the date it was submitted for registration. On the whole we are unable to sustain
any of the grounds on which the judgment was built.

It is clear, from the foregoing reasons that the appeal ought to be allowed and the judgment of the
court below together with the damages and the costs ought to be set aside, and judgment entered
for the defendants.

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APPEARANCES

NII ODOI ANNAN (WITH HIM JOE REINDORF ADUMUA-BOSSMAN ZWENNES

BANNERMAN-WILLIAMS AND GEORGE MENSAH) FOR THE APPELLANTS; E. D. KOM
(WITH HIM M. K. AYISI) FOR THE RESPONDENT.

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