ACHEAMPONG vs. BANTAMA GYASEHENE AND ANOTHER [1992]DLCA5033

Date	1992-07-30
Suit No.	1992 – 93] 4 G B R 1447 – 1450 C. A
Citation No.	[1992]DLCA5033

ESSIEM JA

ADJABENG JA

LUTTERODT JA

WARD-BREW FOR THE APPELLANT.

WONTUMI FOR THE RESPONDENTS.

[1992]DLCA5033
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													<main id="main" class="content" style="min-height: 60rem" >ACHEAMPONG<o:p></o:p>vs.<o:p></o:p>BANTAMA GYASEHENE AND ANOTHER<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

1992
– 93] 4 G B R 1447 – 1450 C. A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 30 JULY 1992<o:p></o:p>

WONTUMI
FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>LUTTERODT
JA. <o:p></o:p>This is an appeal against
the judgment of the circuit court dated 5 March 1991. The facts giving rise to
this action are very simple. The plaintiff-appellant who is a farmer obtained
the leasehold interest in the disputed land from the Government of Ghana which
had acquired the land in 1978. Thereafter he went into possession.
Subsequently, the 1st defendant granted a portion of this land to the 2nd
defendant who commenced building operations on it. When in spite of several
warnings, the defendants would not desist from the acts of trespass, the
plaintiff was constrained to institute an action in the Circuit Court, Kumasi,
for a declaration that he is the lessee of the disputed land; damages for
trespass; perpetual injunction restraining the 1st defendant, his agents and
servants from interfering or dealing with the land in dispute.<o:p></o:p>For some rather obscure
reason, the learned judge gave judgment for the defendants and proceeded to award
general damages of four hundred and sixty thousand cedis of which he held that
the sum of two hundred and sixty thousand cedis was adequate compensation for
the plaintiff.<o:p></o:p>The dissatisfied
plaintiff, on the same day that judgment was delivered, filed an appeal against
the decision on two grounds. Fourteen further grounds of appeal were
subsequently filed and the same were, by the leave of court, also argued along
with the original grounds of appeal.<o:p></o:p>It was first submitted
that the learned trial judge failed to evaluate the evidence and make a finding
with regard to the ownership of or title to the land, ie the leasehold
interest, even though the plaintiff had sought for a declaration of title to
the land. Counsel then concluded that the trial judge’s own finding that the
plaintiff was entitled to compensation clearly suggested that title was vested
in the plaintiff. Allied to this is the second point urged on us. It is that
the learned judge’s finding that the plaintiff was estopped by laches and
acquiescence is clearly insupportable by the evidence.<o:p></o:p>I am in entire agreement
with the appellant’s counsel on the submissions he has made. The evidence of
PW1, an official from the Lands Department, clearly shows that the Government
acquired the land in 1902 under the Administration (Ashanti) Ordinance 1902
(Cap 110). Again the evidence shows that by the agreement tendered as exhibit
A, the plaintiff was granted a lease of the said land. The lease took effect
from 1 July 1978. The plaintiff had been in possession for some 10 years, and
no one had questioned the various acts of ownership he had exercised over this
land during that period.<o:p></o:p>The defendants’ evidence
on the other hand shows that the 1st defendant granted the said land to the 2nd
defendant in 1986. At this date, the uncontroverted facts show that the 1st
defendant had no valid title to convey. It is therefore unfortunate that in
spite of such overwhelming evidence and, more importantly, the fact, clearly
borne out by the lease agreement, exhibit A, that the land was specifically
allocated to the plaintiff for livestock farming, the learned judge concluded:<o:p></o:p>“…from the evidence the land granted
to the plaintiff was for livestock in 1978 and will not be suitable for the
purpose…”<o:p></o:p>and so declined to grant
the relief for declaration of the leasehold title.<o:p></o:p>I am also satisfied from
the evidence that he is not guilty of either laches or acquiescence. On the
contrary, he appears to have acted timeously. There is not the slightest
evidence that he acted fraudulently.<o:p></o:p>The matters that must be
proved before the doctrine can be invoked are laid out in Boateng v Ntim [1961]
GLR 671. It was held therein that:<o:p></o:p>“¼ to establish acquiescence amounting
to laches it must be proved inter alia, that (a) the party relying on it had a
bona fide belief that he had a good title to the land, when in fact he had
none; (b) that the person sought to be estopped had knowledge of the error on
the part of the person pleading the estoppel; and (c) that the party pleading
it had been led, fraudulently, by the silence or active encouragement of the
person sought to be estopped to spend money to improve the property or in
respect of it.”<o:p></o:p>From the available
evidence, it does not seem to me that the defendants can honestly say they had
a bona fide belief that they had a good title to the land. Their evidence is
completely silent on what reasonable step the 2nd defendant took as a prudent cautious
purchaser as for example by way of official searches conducted at the
appropriate government departments to ascertain whether the subject matter was
in anyway encumbered. Even if I were in error and the evidence does justify a
finding in their favour that they had such bona fide belief that they had title
to the land, I have no doubt in my mind that it cannot be said of the plaintiff
that with full knowledge of the 2nd defendant’s error he actively encouraged
them or by silence fraudulently misled them into investing in the land. On the
contrary, the evidence clearly shows that as soon as he learnt of the trespass
he took steps to warn them off the land. These steps include a letter he caused
the Lands Commission to write to them, exhibit D. Even the 2nd defendant who
actually incurred expenditure on the land confesses that while carrying on with
the construction, the plaintiff came to inform them that the land had been
allocated to him but in spite of this warning “they continued to build.”<o:p></o:p>In the light of the
foregoing, judgment ought to have been entered in favour of the plaintiff for
all the reliefs endorsed on the writ. In the result I would allow the appeal
and enter judgment for the plaintiff for all the reliefs. I would assess
general damages at two hundred thousand cedis.<o:p></o:p><o:p>&nbsp;</o:p>