SERWAH vs. NANA ADJEN II [1993]DLCA4897

Date	1993-06-19
Suit No.	[1992-93] 2 G B R 915 – 919
Citation No.	[1993]DLCA4897

AMUAH JA

KPEGAH JA

LUTTERODT JA

[1993]DLCA4897
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													<main id="main" class="content" style="min-height: 60rem" >SERWAH<o:p></o:p>vs.<o:p></o:p>NANA ADJEN II<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;
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[1992-93] 2 G B R 915 – 919&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: 19TH JUNE 1993<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;
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AMUAH
JA, KPEGAH JA, LUTTERODT JA<o:p></o:p>

</div>LUTTERODT JA. <o:p></o:p>On
29 January 1976, Nana Kwabena Duro, in his capacity as Odikro of Yenyawaso and
the person authorised to allocate Yenyawaso building plots, allocated plot No 7
Block III to the plaintiff-appellant (whom I shall hereafter refer to as “the
appellant”) and issued her with an allocation paper. She acquired this plot by
a customary grant; in consideration of the allocation, she paid a customary
aseda of one thousand and twenty-one cedis plus one full bottle of schnapps.<o:p></o:p>Sometime
later, on her return from her sojourn outside this country, she sought to
register the grant. The Asantehene’s land office refused to accept the
allocation paper for registration on the ground that the defendant-respondent
(referred to hereafter as “the respondent”) had directed them not to accept the
document. When she went to the respondent to protest about what she thought was
an unlawful interference with her rights, the latter requested her to provide a
fresh “aseda” for an entirely new plot. His conduct showed that he was denying
her title to the said plot of land.<o:p></o:p>She
thus caused a writ to be issued for the usual reliefs of declaration of title
and damages for trespass as well as for the ancillary relief of permanent
injunction. The respondent, among other things, denied that the subject matter
was at any point in time ever allocated to appellant and, in turn,
counterclaimed for a declaration of title to the disputed plot.<o:p></o:p>By
a judgment dated 17 March 1983, His Honour Piesare dismissed the appellant’s
claim and entered judgment for the respondent upon his counterclaim.<o:p></o:p>It
is against this judgment that the appellant has appealed and earnestly sought
that we set aside the trial court’s decision. The one additional ground upon
which the appeal was argued reads as follows:<o:p></o:p>“The trial judge fell in error by
holding that the grant to the plaintiff was null and void. Even though at the
time of the said grant the land was zoned as a sanitary area this land was
subsequently zoned for residential purposes. The finding of the court has
occasioned for the appellant a substantial miscarriage of justice.”<o:p></o:p>The
learned trial judge did find as a fact that the late Nana Duro did indeed
allocate the plot No 7 to the appellant. Quite naturally, the appellant is very
happy with this finding for the respondent has by the paragraph 4 of his
defence alleged that this plot was never allocated to the appellant. The
appellant therefore has no quarrel with this finding. Her grievance lay with
the trial judge’s finding that because the plot allocated to her was zoned for
sanitary and not residential purposes, the purported grant was null and void.<o:p></o:p>The
argument of appellant counsel is that this holding was clearly erroneous in so
far as the evidence clearly shows that subsequently the plot was rezoned into a
residential plot. Consequently by operation of law, even if the original grant
was null on the ground that the grantors had no vacant residential land to
pass, by the subsequent rezoning, title to that piece of land would become
vested in the appellant. It is the contention of appellant counsel that in
these circumstances, the trial judge ought to have held that the subsequent
rezoning served to vest appellant with title.<o:p></o:p>In
reply respondent counsel urged us that because the evidence does show that plot
7 formed part of an area zoned for sanitary purposes, and in any case because
the consent and concurrence of the Lands Commission was never obtained as was
required under section 47 of the Provisional National Defence Council
(Establishment) Proclamation 1981 (PNDCL 42), the appellant never acquired any
valid title to the plot 7.<o:p></o:p>To
my mind therefore, from the arguments, the question which arises for
determination in this appeal is whether the subsequent rezoning served to vest
the appellant with title. Before I deal with this main issue then, I would like
to say that contrary to counsel’s contention, the appellant, at the time of the
acquisition, did not need the consent or concurrence of the Lands Commission to
acquire a valid title to the plot 7. Section 47(1) of PNDCL 42 relied on by the
respondent counsel in support of his assertion reads as follows:<o:p></o:p>“An assurance of stool land to any
person by a Stool or by any person who by reason of his being entitled under
customary law, has acquired possession of such land shall not operate to pass
an interest in or right over a stool land unless it was executed with the
consent and concurrence of the Lands Commission unless such assurance is to a
person entitled by customary law to the free use of land within the particular
area and the assurance does not involve the payment of any valuable
consideration whether in cash or in kind.”<o:p></o:p>By
this law, the consent and concurrence of the Lands Commission was needed in
certain cases involving the grant of stool lands to pass the legal estate. But,
by the clear provisions of section 4(6) of PNDCL 42, the above provision came
into effect on the day PNDCL 42 was made. It will be useful to reproduce
section 4(6) of PNDCL 42. It reads:<o:p></o:p>“(6) Every law made by the Council
shall unless otherwise provided in that Law, come into force on the day it is
made.”<o:p></o:p>PNDCL
42 was made on 30 December 1982, while the appellant acquired the plot 7 on 29
January 1976. It was never provided for that the law should operate
retrospectively.<o:p></o:p>I
now deal with the central issue at stake. There is an interesting principle of
law known as feeding the estoppel by the interest. Founded on Roman Dutch Law,
it operates on this basic principle of estoppel that at common law a man cannot
be heard to deny the existence of a state of affairs which he has previously
asserted. The principle has been applied in the following cases: Cuthbertson v
Irving [1859] 4 H &amp; N 742, Webb v Austin [1844] 7 M &amp; G 701 and
Rajapaske v Fernando [1920] AC 892 at 897.<o:p></o:p>By
this doctrine, where a man conveys or demises land in which he has not the
legal estate or any interest whatsoever, he stops himself from disputing
thereafter</main>