IN THE SUPREME COURT, ACCRA

3/8/1989

ADADE, TAYLOR, FRANCOIS, WUAKU AND AMUA-SEKYI JJ.S.C.

ODAMETEY v. CLOCUH AND ANOTHER

(Page 14)

Land law and conveyancing—Title to land—Proof—Principle that plaintiff must rely

entirely on strength of his own case and not on weakness in defence case—Meaning of
principle—Weakness in defendants’ case to be considered in evaluating strength of plaintiff’s
case in appropriate circumstances—Evidence Decree, 1975 (N.R.C.D. 323), ss. 11 (4) and
12.

Practice and procedure—Pleadings—Variations in—Effect on case—Changes in pleadings

that do not destroy case to be ignored.

Land law and conveyancing—Deeds and documents—Recitals—Legal effect on disposition

clause—Plaintiff reciting in 1970 conveyance customary grant of 1962—Whether 1970
conveyance a fresh grant or confirmatory of prior customary grant.

Land law and conveyancing—Ownership and possession—Proof of—Possession by

trespasser—Claim for title by one trespasser against another trespasser bound to fail—One
trespasser ousting another in possession—Ousted trespasser to be protected against whole
world except owner.

Land law and conveyancing—Deeds and documents—Non-registration—Effect—Land

Registry negligently failing to process and register plaintiff 's duly stamped document in
1970—Registry registering same land for defendants in 1976—Whether 1970 document
deemed constructively registered—Existence or otherwise of doctrine of constructive
registration—Land Registry Act, 1962 (Act 122), s. 24 (1).

Land law and conveyancing—Land administration—Stool lands—Sale of—Concurrence—

Lack of Minister's concurrence invalidates transaction—Administration of Lands Act, 1962
(Act 123), s. 8 (1) and (6).
Law reform—Title to land—Non-registration—Effect of—Mandatory provision in Land
Registry Act, 1962, s. 24 (1) requiring registration—Resultant hardships inflicted on innocent
purchasers—Need for reform in law as to title registration—Act 122, s. 24 (1).

The plaintiff by a deed of conveyance, exhibit A, executed in 1970, bought the land in
dispute from the Akumajay stool and went into possession. She presented exhibit A which
was duly stamped to the Lands Department for registration in accordance with section 24 (1)
of the Land Registry Act, 1962 (Act 122). Exhibit A was inadvertently unattended to,
therefore the concurrence of the Lands Commission was not obtained and it remained
unregistered. Subsequently, the Akumajay stool, by another deed of conveyance, exhibit E,
executed in 1976, sold the same land to one B who in turn sold it to the second defendant.
Exhibit E was duly registered and received concurrence also in 1976. The recitals in both
exhibits A and E stated that the purchasers had previously obtained customary grants of the
same land in 1962 and 1960 respectively. Soon after the registration of exhibit E in 1976,
the defendants began building operations on the land and the plaintiff sued at the circuit
court, inter

(PAGE 15)

alia, for declaration of title and recovery of possession. At the trial, the plaintiff abandoned
her claim of prior customary grant and relied on exhibit A. The trial circuit court found as
false, the recitals by which both the plaintiff and the defendants had claimed customary grant
in 1962 and 1960 respectively. He therefore fell on the disposition clauses in exhibit A and
E respectively, regarding them as fresh grants. Taking the view that the plaintiff had done all
that was expected of her and considering herself bound by the Court of Appeal decision in
Ntem v. Ankwandah [1977] 2 G.L.R. 452, the trial court held that the plaintiffs conveyance
should be deemed to have been constructively registered as from the date when she
presented exhibit A to the Lands Department for registration in 1970 and to take priority
over exhibit E, the registered document of 1976 relied upon by the defendants. Judgment
was thus given in favour of the plaintiff. The defendants appealed to the Court of Appeal.
In reversing the decision of the circuit court, the Court of Appeal did not consider the
constructive registration principle upon which the circuit court had based its decision.
Instead, the judgment was overturned on the grounds, inter alia, that: (i) exhibit A was
confirmatory of the earlier customary grant recited in the 1970 transaction and which the
trial court found to be false; (ii) the law would protect the party in possession at the
commencement of an action and that a first trespasser could not rely on his earlier unlawful
entry to establish his title to land; (iii) the evidence brought by the plaintiff revealed some
variations from the pleadings and the law did not permit a party to put up evidence of a case
contrary to that which he had put by his pleadings; and (iv) the law enjoined a plaintiff in an
action for declaration of title to succeed on the strength of his own case and not on any
weakness in the defendant's case. In the instant appeal by the plaintiff against the decision
of the Court of Appeal.

Held, dismissing the appeal, but for the following reasons:

(1) the present position was that if the plaintiff in a civil suit failed to discharge the onus on
him and thus completely failed to make a case for the claim for which he sought relief, then
he could not rely on the weakness in the defendant's case to ask for relief. If, however, he
made a case which would entitle him to relief if the defendant offered no evidence, then if
the case offered by the defendant when he did give evidence disclosed any weakness which
tended to support the plaintiff's claim, then in such a situation the plaintiff was entitled to
rely on the weakness of the defendant's case to strengthen his case. That was amply
supported by sections 11 and 12, particularly section 11 (4) of the Evidence Decree, 1975
(N.R.C.D. 323). It was therefore wrong for the Court of Appeal to rely on the strength and
weakness criteria mentioned in the Kodilinye principle without ascertaining whether the
plaintiff did or did not make a case even if it was a weak one, having regard to the fact that it
was only when a plaintiff failed completely to make a case that the principle would apply.
Dictum of Webber C.J. in Kodilinye v. Odu (1935) 2 W.A.C.A. 336 at 337-338 explained;
Ricketts v. Addo [1975] 2 G.L.R. 158 at 166, C.A. per Amissah J.A. and Nartey v.
Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314 S.C. cited.

Per Taylor J.S.C. The mechanical application of this so-called principle in actions for
declaration of title—the genesis of which is traceable to [the dictum] of Webber C.J. in
Kodilinye v. Odu that "the plaintiff must rely on the strength of his own case and not rely
on the weakness in the defendant's case"—should be deprecated . . . If the dictum of
Webber C.J. stated over half a century ago supports the proposition that a weakness in the
defendant's case in an action for a declaration of title must not be considered in evaluating
the strength of the plaintiff’s case no matter the nature of the plaintiff’s case, then the
dictum is now no more true of the legal position in modern Ghana, at least since the coming
into force of the Evidence Decree, 1975 (N.R.C.D. 323) . . . If there was

(PAGE 16)

ever a doubt about the true principle . . . then N.R.C.D. 323, has now definitely cleared all
possible doubts.

(2) Variations in pleadings that did not substantially destroy the plaintiff’s case were not
material and could in appropriate circumstances be safely ignored. Therefore if the
plaintiff's conveyance of 1970 was valid then the abandonment of her claim of customary
grant was wholly immaterial and was a variation of no consequence whatsoever. Majority
decision in R. T. Briscoe v. Preko [1964] G.L.R. 322 at 352, C.A. criticised.
Per Taylor J.S.C. It seems to me that it is now common knowledge in all our courts that
plaintiffs and also defendants often deviate from their pleadings and put forward cases at the
trial by their evidence which reveal some variation from their pleadings. If the proposition
of law put forward here . . . [by the Court of Appeal] and supported by the majority view in
R. T. Briscoe v. Preko is correct, no plaintiff can ever successfully maintain a claim in court
who has deviated, however slightly, from his pleadings. I endorse fully the minority view of
Apaloo J.S.C. . . . in the Preko case.

(3) A recital did not control the operative part of a deed where the operative part was clear.
In the instant case, a most casual reading of the operative clause revealed that a confirmatory
grant was not intended. The reference to the customary grant in the recital was in no way
connected with any provision in the disposition clause which plainly and unambiguously
merely sought to convey the vendor's beneficial estate to the purchaser. On a fair reading of
exhibit A it was quite clear that no question of confirmatory grant arose on a consideration
of the operative part and consequently, the conveyance of 1970 was, by all conceivable legal
canons of construction, a fresh grant. Bath and Mountague's Case (1693) Cas. in Ch. 55;
Holliday v. Overton (1852) 14 Beav 467 and Dawes v. Tredwell (1881) 18 Ch.D. 354 cited.

(4) A claim by one trespasser for declaration of title against another trespasser would
definitely fail since the claim had in law nothing to do with mere physical possession as such.
If however the claim were one for possession and not for a declaration of title then a
trespasser in possession who had blatantly ousted a previous trespasser could not be
protected by the courts whether he came as a plaintiff or a defendant. The ousted trespasser
whether he came as a plaintiff or a defendant would rather have his possessory title
protected as against the trespasser and the whole world except the true owner. The Court of
Appeal had erred in holding otherwise. Osborne v. Rowlett (1880) 13 Ch.D. 774; Asiedu v.
The Republic [1967] G.L.R. 589 and dictum of Taylor J.S.C. in Mechanical Lloyd Assembly
Plant Ltd. v. Nartey [1987-88] 2 G.L.R. 598, S.C. cited.

(5) The trial circuit court had erred in applying the Ntem v. Ankwandah ratio of the
discreditable doctrine of "constructive registration" to give legal title to the plaintiff. The
effect of that indulgence was the consequential priority given to the plaintiff’s unregistered
document executed in 1970 so as to defeat the second defendant's title founded on a
document that had been stamped, had received concurrence and had been registered in
1976. Even if that questionable constructive registration could be justified, it was quite clear
that the plaintiff did not obtain concurrence and that circumstance would certainly nullify or
at least invalidate the grant. For lack of registration under the Land Registry Act, 1962 (Act
122), s. 24 (1) and concurrence under the Administration of Lands Act, 1962 (Act 123), s. 8
(1) and (6) the plaintiff could not maintain an action on the strength of the conveyance
granted to her in 1970 by the Akumajay stool. Asare

(PAGE 17)

v. Brobbey [1973] 1 G.L.R. 333, C.A. and Amefinu v. Odametey [1977] 2 G.L.R. 135, C.A.
approved. Hammond v. Odoi [1982-83] G.L.R. 1215, S.C. and Nartey v. Mechanical Lloyd
Assembly Plant Ltd. [1987-88] G.L.R. 314, S.C. applied. Ntem v. Ankwandah [1977] 2
G.L.R. 452, C.A. overruled.

Per Taylor J.S.C. I think the clear path indicated by case law on the tradition of the stare
decisis principle is that the doctrine of constructive registration hinted at in Ussher v. Darko
and which flowered to fruition in Ntem v. Ankwandah is with respect a proposition of law
which conflicts with respectable case law and flies in the face of the unambiguous provision
contained in section 24 (1) of Act 122. It is . . . an aberrant and erroneous doctrine. I would
therefore without hesitation overrule the decision of Ntem v. Ankwandah (supra) so that it
will henceforth cease to impel the Court of Appeal and the other lower courts to follow it as
they have done in the past.

I cannot, however, end this judgment without responding to the disgraceful practice by
which some dishonest land owners convey the same land to different purchasers. It is the
glaring hardship the first purchasers suffer that induced Apaloo C.J. in an admittedly
honourable exercise of his judicial power to invest the doctrine of constructive registration
in the interest of a somewhat extra-judicial concept of justice so as to circumvent and avoid
the provisions of section 24 (1) of Act 122 in order to protect such innocent purchasers.
Innocuously conceived as a protective device, it equally inadvertently creates intolerable
hardship on an equally blameless purchaser who has in compliance with the law rather done
all that the law decrees he should do to obtain title. Surely in such a situation it is obviously
inequitable to permit a legal estate to be defeated by an equitable interest.

(6) There was need for a reform in the law as to title registration that would meet the
hardships encountered by innocent purchasers of land without doing violence to the
integrity of the Land Registry regime.
Per Taylor J.S.C. The time is now due for the legislature to take a second took at the Land
Registry Act, 1962 (Act 122). It has operated for well over 25 years and its shortcomings
and potential for fraudulent deals are now transparent. Of course in clear cases of fraud, the
registered proprietor implicated in the fraud cannot take advantage of the statute because
fraud vitiates all transactions: see Dzotepe v. Hahormene III [1987-88] 2 G.L.R. 681, S.C. . . .
Consideration should be given by the Law Reform Commission to a provision by which
researchers in the Lands Registry are supplied information on all applications for registration
already with the Lands Department on the dates of their inquiry. A time limit not exceeding,
say six months, for registration after which applications lapse should be considered. And the
registration when ultimately effected in cases where the applicant has done all that is
required of him on the date of his application, can be made retrospective to the date of his
application, provided no application prior to his, is at the registry.

Cases referred to:

(1) Ntem v. Ankwandah [ 1977] 2 G.L.R. 452, C.A.

(2) Kodilinye v. Odu (1935) 2 W.A.C.A. 337.
(3) Ricketts v. Addo [1975] 2 G.L.R. 158, C.A.
(4) Nartey v. Mechanical Lloyd Assembly Plant Ltd. [1987-88] 2 G.L.R. 314, S.C.

(PAGE 18)

(5) R. T. Briscoe v. Preko [1964] G.L.R. 322, C.A.

(6) MacFoy v. U.A.C. Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1405; [1961] 3 All E.R. 1169
P.C.
(7) Bath and Mountague's Case (1693) 3 Cas. in Ch. 55.
(8) Holliday v. Overton (1852) 14 Beav 467; 21 L.J.Ch. 769.
(9) Dawes v. Tredwell (1881) 18 Ch.D. 354; 45 L.T. 118.
(10) Mechanical Lloyd Assembly Plant Ltd v. Nartey [1987-88] 2 G.L.R. 598, S.C.
(11) Wuta-Ofei v. Danquah [1961] G.L.R. 487; [1961] 3 All E.R. 596; [1961] 1 W.L.R. 285,
P.C.
(12) Osborne v. Rowlett (1880) 13 Ch.D. 774; 42 L.T. 650; 49 L.J.Ch. 10.
(13) Asiedu v. The Republic [1967] G.L.R. 589.
(I4) Ussher v. Darko [1977] 1 G.L.R. 476, C.A.
(15) Odoi v. Hammond [1971] 1 G.L.R. 375, C.A.
(16) Akwei v. Awuletey [1960] G.L.R. 231, S.C.
(17) Asare v. Brobbey [1971] 2 G.L.R. 331 C.A.
(18) Phillips v. Copping [1935] 1 K.B. 15, C.A.
(19) Amefinu v. Odametey [1977] 2 G.L.R. 135, C.A..
(20) Hammond v. Odoi [1982-83] G.L.R. 1215, S.C.
(21) Mechanical Lloyd Assembly Plant Ltd. v. Nartey [1984-86] 1 G.L.R. 412, C.A.
(22) Ayitey v. Mantey [1984-86] 1 G.L.R. 552, C.A..
(23) Timber and Transport Sawmilling Co. Ltd. v. Kataban Timber Co. Ltd. [1975] 2 G.L.R.
62, C.A..
(24) Dzotepe v. Harhomene III [I987-88] 2 G.L.R. 681, S.C.
(25) Abossey-Okai II v. Ayikai II (1955)12 W.A.C.A. 37.
(26) Danquah v. Wuta-Ofei and Bonne (1956) 2. W.A.L.R. 185, W.A.C.A.; affirmed sub.
nom. Wuta-Ofei v. Danquah [1961] G.L.R. 487, P.C.
APPEAL against the decision of the Court of Appeal reversing the judgment of the Circuit
Court, Accra which had accorded priority to the plaintiff’s unregistered document over the
defendant's registered deed under section 24 (1) of the Land Registry Act, 1962 (Act 122).
The facts are sufficiently set out in the judgment of Taylor J.S.C.

W. A. N. Adumua-Bossman for the appellant.

E. D. Kom, S.A.G. (with him George Kom) for the respondents.

Taylor J.S.C. This is an appeal from a judgment of the Court of Appeal dated 12
November 1984 which unanimously set aside a

(PAGE 19)

decision of the circuit giving in favour of the plaintiff herein. The case is a typical instance
of the dishonest conduct of some landlords in the Accra Metropolitan Area. It involves real
estate transactions of two sales on different dates by the Akumajay stool of the same niece of
Akumajay stool land by separate conveyances. The first was to the plaintiff and the second
was in favour of a vendor of the second defendant. An elaborate statement of the facts will
highlight the reasoning behind the legal considerations which the trial circuit court and the
Court of Appeal respectively utilised in resolving the resultant dispute.

The appellant was the plaintiff in the circuit court. In her statement of claim she alleged that
she had a customary grant of the land in 1962 from the Macleans and "that immediately after
the said grant she went into possession and has since been in undisturbed possession." At
the trial, however, she abandoned this claim in her pleading and rather gave evidence that
one Oblitey from Akumajay gave her a customary grant of the land in 1969 for a
consideration of ¢220. When however, according to her, she cleared the land, deposited
stones and sand and dug foundations in order to commence building operations, Nii
Abossey Okai II, the incumbent chief of the Akumajay stool, claiming ownership on behalf
of the stool and asserting to be the rightful person to convey and not Oblitey, caused her
foundations to be filled up. In the circumstance she was obliged to purchase the land a
second time from the said Nii Abossey Okai II on payment to him of the sum of ¢300. This
was on 14 January 1970 and a deed of conveyance tendered in the proceedings as exhibit A
was prepared in her favour to evidence the transaction.

She indicated in evidence that after a court action against Oblitey, she had a refund of half
the money which she had paid to him. After the 1970 purchase, she erected corner pillars
and water tank and deposited sand, stones and blocks on the land. She submitted her
document, exhibit A, to the Lands Department for registration after she had had it stamped
as document No. AC 2131/70. From 1970 after submitting her document until 30
November 1976 when she took out the writ at the circuit court to vindicate her title, her
document laid dormant in the Lands Registry and apart from the stamping, it was never
formally registered nor was the concurrence of the ministry or the Lands Commission
obtained. The non-registration was on the evidence clearly a result of the negligence of the
schedule officers of the Lands Department.
On a visit to the land in 1976 she found all her blocks missing and saw pegs put on the land
preparatory to the commencement of building operations. This led her to conduct further
investigations at the Lands Department which disclosed that one Veronica Borkor, the
ostensible

(PAGE 20)

vendor of the second defendant, has had her document, exhibit E, which was executed on
21 April 1976 registered instead of her document. Borkor's document was apparently
stamped on 24 April 1976 as document No. AC 4164/76 and it had concurrence as
document No. GLS/1281/76; it was registered as document No. 2908/1976 and was made
between her and Nii Ayikai Stephens, the Acting Mantse of the Akumajay stool who, was
also her own grantor.

She complained against the obvious injustice of registering the later document and ignoring
her earlier one; and on 25 August 1976 as a result of her protest, the regional lands officer
wrote a letter, exhibit B, to Nii Ayikai Stephens, the vendor of Veronica Borkor, with copies
to the plaintiff and Veronica Borkor, The letter is as follows:

"Sir,

ADMINISTRATION OF LANDS ACT, 1962

DOCUMENTS NOS. 32000/20126 AND 3200/30271

The above-named mentioned [sic] document No. 3200/ 30271 executed by Nii Abossey
Okai II was deposited with this department for processing recently in 1970. Inadvertently
this document was not attended to until recently in 1976, when a document bearing No.
32000/20126 in the name of Veronica Borkor in respect of the same plot, executed by Nii
Ayikai Stephens, was processed by this department and duly got its concurrence from the
Chairman of the Lands Commission. This is a gross anomaly and in so far as the chief is
concerned it amounts to a criminal act for selling the same piece of plot to two different
persons.

By a copy of this letter, I am asking you to take an immediate step to contact Madam
Veronica Borkor lapsing [sic] or in the alternative, you should find a suitable plot for
Albertina Odametey so that this matter is settled amicably.

I hope you would quickly respond to the contents of this letter.

Yours faithfully,
(Sgd.)
For: Regional Lands Officer
Greater Accra Region

NII AYIKAI STEPHENS

CHIEF OF AKUMAJAY STOOL
ACCRA
cc Veronica Borkor
(PAGE 21)

P. O. Box 4059
Accra
Miss Albertina Odametey
P. O. Box 1189
Accra.”

On the receipt of exhibit B the said Nii Ayikai Stephens, Acting Akumajay Mantse, wrote to
the plaintiff as follows:

"27 August 1976

Akumajay Mantse We
P. O. Box 1,
James Town.
Accra.

Dear Madam,
I have received a letter from the regional lands officer dated 25 August 1976 of which a copy
of same have been sent to you per your address.

Owing to circumstances, I would like to meet both of you on Friday, 3 September 1976 at
10 am at the queenmother's residence, Laingoye House, on Bannerman Road, opposite
G.N.T.C. Cement Store, to investigate this matter for amicable settlement.

Your kind attention to this I shall feel grateful.

Yours faithfully,
(Sgd.) Nii Ayikai Stephens
Akumajay Dzasetse & Acting Mantse

MISS ALBERTINA ODAMETEY,

P. O. Box 1189,
ACCRA."

The plaintiff in the circumstance on seeing building activities going on and suspecting that
the building was being put up by Veronica Borkor issued a writ against her on 14 October
1976. The writ was served on the first defendant whom the plaintiff thought was Veronica
Borkor. The first defendant entered conditional appearance under protest on 8 November
1976 and eventually got the writ set aside on 29 November 1976. In the meantime the
building activities were relentlessly carried on and on 30 November 1976 the plaintiff issued
the present writ and filed a motion for interim injunction on 22

(PAGE 22)
December 1976. The motion was adjourned on a number of occasions for non-service but
was finally heard and granted on 2 March 1977, by which date the building operations had
been unremittingly and successfully carried out to a virtual completion.

The defendants persisted in carrying out the building operations in the full knowledge that
the plaintiff was challenging the validity of the title of their vendor, Veronica Borkor.
Veronica Borkor's vendor was the Akumajay stool and undisputed evidence was led by the
Akumajay stool that the defendant "conducted a search and did not find the land registered."
When the acting incumbent of the stool, Nii Ayikai Stephens, received exhibit B from the
Lands Department it would be recalled that he invited the plaintiff to call on him for
amicable settlement. The unchallenged evidence of what took place at the settlement was
given by the secretary of the Akumajay stool when he said:

"Though she (the plaintiff) never produced her receipts or documents, Ayikai Stephens
concluded she should be replaced (sic) with another land. But the plaintiff refused, insisting
on the same plot."

The Akumajay stool supported fully the grant to Veronica Borkor contained in exhibit E.
According to Mrs Clocuh, some time in 1976 she was in search of land for her husband and
Madam Veronica Borkor assured her that she was in the process of negotiating for land and
would offer it to her when she succeeded. She subsequently succeeded and her husband, the
second defendant, Moses Clocuh, had a conveyance from Veronica Borkor on 21 July 1976.
The said conveyance was tendered in evidence as exhibit 1. It was stamped as AC 7793/76
and was registered in the Lands Registry on 16 December 1976 as document No. 4695/76.
It is clearly their belief in and reliance on the validity of the Borkor document, exhibit E, as
their root of title that persuaded the Clocuhs to throw caution to the winds and proceed
confidently with their building operations. Although it was alleged by Mrs. Clocuh that
Veronica Borkor had indicated that she was merely negotiating for the purchase of land in
1976 yet her conveyance, exhibit E, contained some recitals before the disposition clause
which would seem to be either clearly false or to patently undermine the truth of the
allegation contained in the evidence of Mrs. Clocuh. Veronica Borkor was the person
described as the purchaser in exhibit E and the said recitals and the operative clause are as
follows:

"1. In or about the year 1960 Nii Abossey Okai II granted the land. and hereditaments
hereinafter described unto the pur-

(PAGE 23)

chaser but no document was executed between the parties to perpetuate the said grant.
2. The purchaser has now found it expedient that the said grant be evidenced by a deed and
has approached the vendor herein for such a title deed which he has agreed to execute.
3. The vendor as owner hereby CONVEYS unto the purchaser the said land forever in
consideration of the sum of ¢50 paid by the purchaser to the vendor being purchase price.
4. The land situate lying and being at WEST ABOSSEY OKAI, ACCRA containing an
approximate area of 0.24 acre bounded on the north-west by proposed road measuring 140
feet more or less on the south-west by stool land measuring 75 feet more or less on the
south-east by stool land measuring 140 feet more or less and on the north-east by stool land
measuring 175 feet more or less which piece or parcel of land is more particularly delineated
on the plan attached hereto and thereon shown edged pink which shows the relevant
measurements."

In the light of the evidence, it is difficult to fault the finding of the learned circuit court judge
that the recital that Veronica Borkor obtained a grant in 1960 is false. Granted it is false, it is
necessary to consider its significance as far as the legal validity of what was actually conveyed
by exhibit E is concerned. And I shall consider that later on in this judgment. In this
connection it is noteworthy that the 1970 conveyance to the plaintiff, exhibit A, had also a
number of recitals before the operative part which clearly conflicted with, and are
contradicted by the evidence of the plaintiff who was the purchaser in exhibit A. The
relevant passages of exhibit A are as follows:

"Whereas on the death of Nii Ayikai II, late Akumajay Mantse, the Dzasetse, Nii Quao
Addoh, on 27 March 1965 granted a power of attorney to Nii Abossey Okai II and
appointed him as the lawful representative of Akumajay division and authorised him to
execute all documents for the alienation of stool land which power of attorney was
confirmed on 14 June 1965 by the Ga Traditional Council.

Whereas in or about the year 1962 the Macleans customarily granted and conveyed the land
and hereditaments hereafter described unto the purchaser herein free from all incumbrances
and the purchaser has since that date been in undisputed occupation and possession of the
same but no document was executed between the parties to perpetuate the said grant.

(PAGE 24)

And whereas the purchaser has now found it expedient that the said grant be evidenced by a
written deed and has approached the present Mantse for such a title deed which he has
agreed to execute.

Whereas the vendor being well and truly entitled absolutely in possession free from all
incumbrances to the land and hereditaments more accurately described and intended to be
hereby granted and conveyed hath agreed with the purchaser hereby granted herein for the
absolute sale and conveyance to her of the said land for the sum of Forty New Cedis (N¢40)
in possession free from all incumbrances.

NOW THEREFORE THIS INDENTURE WITNESSETH that in pursuance of the said

agreement and in consideration of the sum of FORTY NEW CEDIS (N¢40) paid by the
purchaser to the vendor on or before the execution of these presents (the receipt of which
sum the vendor doth hereby acknowledge) the vendor as absolute and BENEFICIAL
OWNER for and on behalf of the said stool doth hereby GRANT and CONVEY unto the
purchaser her heirs, personal representative, successors and assigns ALL THAT PIECE OR
PARCEL OF LAND situate, lying and being at ABOSSEY OKAI, ACCRA, aforesaid and
bounded on the north-east by proposed road measuring seventy feet (70'-0") more or less on
the south-west by school site measuring seventy feet (70'-0") more or less on the south-east
by property of Botwe measuring one hundred feet (100'-0") more or less on the northwest
by proposed lane measuring one hundred feet (100'-0") more or less containing an
approximate area of 0.16 acre as the same is more particularly delineated on the plan
attached and hereto thereon shown edged pink TOGETHER with all rights, privileges,
liberties, right of ways, advantages and appertaining or with the same usually held occupied
and enjoyed and the estate, right, title, interest claim and demand whatsoever of the said
stool into and upon the same TO HAVE and TO HOLD the said piece or parcel of land
granted or expressed so to be unto and to the purchaser her heirs, personal representatives
and assigns forever . . .”

It is substantially on the facts I have delineated above that the plaintiff in the circuit court
issued a writ claiming against the defendants, Mr. and Mrs. Clocuh, the following reliefs:

(a) declaration of title to the piece of land in dispute;

(b) ¢200 damages for trespass; and

(PAGE 25)

(c) injunction restraining the defendants and or their agents and servants from entering
upon the said land.

And it is also, inter alia, reliance on these facts that persuaded the circuit court to give
judgment which in effect granted the plaintiff the reliefs she claimed. The construction
which the Court of Appeal put on these same facts led that court to set aside the judgment
of the circuit court and to decree judgment for the Clocuhs.

I have been obliged to state fully the unchallenged facts in this case because it seems to me
that there were a number of erroneous legal considerations which grounded the respective
ratios of the lower courts. The circuit court judge for instance rejected the claims of both
the plaintiff and the second defendant that they had customary grants in 1962 and 1960
respectively. On the evidence this view of the circuit judge is impeccable because the parties
in their pleadings and at the trial conceded and led evidence which clearly repudiated these
claims contained in the recital to the conveyances which they exhibited to substantiate their
respective customary titles. With the customary grants discredited the learned circuit judge
fell on the disposition clauses in the two conveyances: exhibits A and E respectively.

It would be recalled that exhibit A was executed by the Akumajay stool on 14 January 1970
and was deposited with the Lands Department for processing in the same year 1970.
Exhibit E on the other hand which was executed and deposited in l976 was stamped in 1976
and it had concurrence and was registered, all in 1976. The circuit court judge taking the
view that the plaintiff had done all that was expected of her and considering herself bound
by the decision of the Court of Appeal in Ntem v. Ankwandah [1977] 2 G.L.R. 452 held that
the plaintiff’s conveyance should be deemed to be constructively registered as from the date
of deposit in 1970 and to take priority over the second defendant's document which was
actually registered in 1976. It is on this ground in the circumstances that she gave judgment
for the plaintiff. I shall examine the validity of the approach in the light of the emerging case
law position on this notion of constructive registration which the Court of Appeal, actuated
admittedly by the necessity of ameliorating the hardships of litigants in the interest of justice,
had endeavoured valiantly for the past few years to weave boldly into our law.
When the Clocuhs, the defendants herein, appealed against the decision of the circuit court
to the Court of Appeal, that court was singularly reticent and in fact completely silent as
regards the applicability of the Ntem v. Ankwandah principle of constructive registration
which the circuit court had applied as a binding precedent. Edward Wiredu J.A. (as he then
was) delivering the leading judgment

(PAGE 26)

setting aside the judgment of the circuit court and decreeing judgment in favour of thethe
defendants founded his decision on the invalidity of exhibit A, the plaintiff's 1970
conveyance. He looked, in my opinion, if I may respectfully say so, rather casualy at exhibit
A and the pleading and the vacillating evidence of the plaintiff in asserting "that the law
enjoins a plaintiff in an action for declaration of title to succeed on the strength of the case
he produces and not on any weakness in the defendants' case." (The emphasis is mine.) He
then said:

"The evidence brought by the plaintiff revealed some variations from the pleadings and the
law is that a party is not permitted to put up evidence of a case different or contrary to that
which he had put by his pleadings. With the above analytical consideration of the plaintiff’s
case (in pleading and evidence) and the finding by the leaned trial judge that the customary
grant originally made to him was void, a finding which has not been challenged by the
plaintiff, it becomes clear that the plaintiff failed to prove a valid root of title. I think also
that Mr. Kom's view that exhibit A is confirmatory of the earlier customary grant is the
correct and right construction to be put on exhibit A and the proper course opened to the
learned trial judge was to have dismissed the plaintiff’s action and to have entered judgment
for the defendant . . . I reject in my judgment the contention ... that exhibit A offered a fresh
and direct grant of the disputed land to the plaintiff . . . The position therefore at the close
of the plaintiff’s case was that the root of title was void and could not therefore have been
the subject of a confirmation or approval later by the Akumajay stool as it purported to do
by exhibit A ... The position in the instant case as I see it (on the findings by the learned trial
judge that the original grants of both the plaintiff and the defendant were void) will be one
where neither the plaintiff nor defendant had title. In such a situation the law protects the
party in possession at the commencement of the action, A first trespasser cannot rely on his
earlier unlawful entry to establish his title to land . . .”

(The emphasis is mine.)

Apart from the Court of Appeal inexplicably glossing over the circuit judge's ratio decidendi
founded on the novel equitable doctrine of constructive registration—a doctrine spelled out
in earlier decisions of the Court of Appeal, the court in its judgment made a number of
pronouncements on the law and founded its judgment on their implications. These
pronouncements in my view contain erroneous statements of law and in my respectful
opinion they must not be

(PAGE 27)

allowed to continue to be perpetuated in our legal system. I have emphasised all of them in
the passages I have quoted from the judgment of Edward Wiredu J.A.
The first is the much-quoted hackneyed expression that (in the words of Edward Wiredu
J.A.), "the law enjoins a plaintiff in an action for a declaration of title to succeed on the
strength of the case he produces and not on any weakness in the defendant's case." Edusei
J.A. supporting this proposition in his concurring judgment thought the point was beyond
question when he said:

"It is trite law that in a suit where a plaintiff seeks a declaration of title to a piece of land it is
incumbent on him to prove his root of title and any weakness in the defendant's case does
not enure to his benefit."

(The emphasis is mine.) It seems to me, with the utmost respect, that the mechanical
application of this so-called principle in actions for declaration of title (the genesis of which
is traceable to the erudite judgment of Webber C.J. in the West African Court of appeal on
18 June 1935) should be deprecated. In the said case, Kodilinye v. Odu (1935) 2 W.A.C.A.
336 at 337-338 involving a declaration of title, the learned Chief Justice said:

"The onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence brought
by him to a declaration of title. The plaintiff in this case must rely on the strength of his own
case and not rely on the weakness of the defendant's case. If this onus is not discharged the
weakness of the defendant's case will not help him and the proper judgment is for the
defendant. Such a judgment decrees no title to the defendant, he not having sought the
declaration. So if the whole evidence in the case be conflicting and somewhat confused, and
there is little to choose between the rival traditional stories the plaintiff fails in the decree he
seeks, and judgment must be entered for the defendant."

(The emphasis is mine.)

If the dictum of Webber C.J. above stated over half a century ago supports the proposition
that a weakness in the defendant's case in an action for a declaration of title must not be
considered in evaluating the strength of the plaintiff’s case no matter the nature of the
plaintiff's case, then the dictum is now no more true of the legal position in modern Ghana,
at least since the coming into force of the Evidence Decree, 1975 (N.R.C.D. 323). Amissah
J.A. in his usually able manner has, however, stated the true ambit of the application of the
principle. In Ricketts v. Addo [1975] 2 G.L.R. 158 at 166, C.A. he explained:

(PAGE 28)

"The burden of persuasion which a plaintiff has to satisfy in every civil case is no more than
proof on a balance of probabilities. In a trial involving title to land like any other civil trial,
therefore, if the defendant's case is measured against the plaintiff’s and the plaintiff’s is
found more probable, a determination which necessarily involves the balancing of the
strength and weakness of the rival claims, the plaintiff’s case has to be accepted. In the
assessment of claims, the judge will have to examine the weakness of the defence just as he
has to examine the weakness of the plaintiff’s claim. The legitimacy of the exercise or of the
plaintiff's assistance to the court in highlighting these weaknesses cannot be questioned."

(The emphasis is mine.) And recently in Nartey v. Mechanical Lloyd Assembly Plant Ltd.
[1987-88] 2 G.L.R. 314, S.C., Adade J.S.C. presiding over the Supreme Court was even more
explicit on the true province of the Kodilinye v. Odu principle. In a dictum with which I
entirely agree, he said at 344 without confining the principle to declaration of title:

"It is true that a person who comes to court, no matter what the claim is, must be able to
make a good case for the court to consider, otherwise he fails. But that is not to say that
having succeeded in establishing some case, he cannot take advantage of conflicts,
admissions and other weaknesses in the defendant's case.”

I think the current principle is quite clear at least since 1 October 1979 when N.R.C.D. 323
came into force. If there was ever a doubt about the true principle, although I am firmly of
the view that there has never been any doubt, then N.R.C.D. 323 has now definitely cleared
all possible doubts. The position is this: If the plaintiff in a civil suit fails to discharge the
onus on him and thus completely fails to make a case for the claim for which he seeks relief,
then he cannot rely on the weakness in the defendant's case to ask for relief. This is obvious
from the dictum of Webber C.J. (supra). If, however, he makes a case which would entitle
him to relief if the defendant offers no evidence, then if the case offered by the defendant
when he does give evidence discloses any weakness which tends to support the plaintiff's
claim, then in such a situation the plaintiff is entitled to rely on the weakness of the
defendant's case to strengthen his case. This is amply supported by sections 11 and 12,
particularly section 11 (4) of N.R.C.D. 323. The said section 11 (4) of the Decree does
indicate, inter alia, that in a civil case: (Page 29)

“ . . .the burden of producing evidence requires a party to produce sufficient evidence so that
on all the evidence a reasonable mind could conclude that the existence of the fact was more
probable than its non-existence."

(The emphasis is mine.) And of course, the burden of persuasion in a civil case is as is
indicated in section 10 (2) of the Decree the establishment of "the existence or non-
existence of a fact by a preponderance of the probabilities."

Commenting on section 11 of N.R.C.D. 323 the Law Reform Commission put the matter
beyond controversy when at 15 of its Commentary on the Evidence Decree 1975 (N.R.C.D.
323) it stated:

"The party with the burden of producing evidence is entitled to rely on all the evidence in
the case and need not rest entirely on evidence introduced by him. The party with the
burden of producing evidence on the issue may point to evidence introduced by another
party which meets or helps meet the test of sufficiency. It is for this reason that the phrase
'on all the evidence' is included in each of the tests of sufficiency."

(The emphasis is mine.) In my view, therefore, it was wrong for the Court of Appeal to rely
on the strength and weakness criteria mentioned in the Kodilinye principle without
ascertaining whether the plaintiff did or did not make a case even if it is a weak one having
regard to the fact that it is only when a plaintiff fails completely to make a case that the
principle applies.

The next questionable pronouncement of the Court of Appeal is that the evidence of the
plaintiff revealed some variations from the pleadings and the law is that a party is not
permitted to put up evidence of a case different or contrary to what he has pleaded. I am
aware that in R. T. Briscoe v. Preko [1964] G.L.R. 322 at 325, C.A. the Court of Appeal
echoing boldly the views expressed here by Edward Wiredu J.A. in this case held in a
majority view that a plaintiff in a civil suit ought not to be allowed "by the trial judge to
make a case which was contrary to her pleadings." The court however did not scrutinise the
nature of the new case in relation to the substantive case which the plaintiff had to prove to
succeed and I am therefore more persuaded by the dissenting view of Apaloo J.S.C. (as he
then was) who in a minority view articulated in my opinion, the true principle. He pointed
out very convincingly at 328 that the so-called variation was merely on a collateral issue
which was not necessary for a decision on the substantive issue upon which the claim rested.
Accordingly, the variation or conflict was immaterial and he rejected it. I agree with his
approach.

(PAGE 30)

It seems to me that it is now common knowledge in all our courts that plaintiffs and also
defendants often deviate from their pleadings and put forward cases at the trial by their
evidence which reveal some variation from their pleadings. If the proposition of law put
forward here in the Edward Wiredu dictum and supported by the majority view in R. T.
Briscoe v. Preko (supra) is correct, no plaintiff can ever successfully maintain a claim in court
who has deviated, however slightly, from his pleadings. I endorse fully the minority view of
Apaloo J.S.C. (as he then was) in the Preko case and I hold that variations in pleadings that
do not substantially destroy the plaintiff's case are not material and can in appropriate
circumstances be safely ignored.

A third pronouncement which was essentially the dominant ratio of the decision of the
Court of Appeal was its view that the customary grant of the plaintiff was void and that
exhibit A was merely confirmatory of the void grant with the consequence that exhibit A
was itself void. The view put forward is that a void grant is incapable of being validated by
confirmation. Edusei J.A. put the matter rather graphically in the fashion of the famous
dictum of Lord Denning in MacFoy v. U.A.C. Ltd. [1962] A.C. 152, P.C. when he said:

“exhibit A was clearly confirming a customary grant previously allegedly made to the
plaintiff by the Macleans who had no right to do so. This cannot be as you cannot put
something on nothing.”

(The emphasis is mine.)

Fortunately I have given the detailed facts of this case and have set down the relevant
provisions of both exhibit A and E. In her pleadings as I have already pointed out, the
plaintiff had referred to a customary grant from the Macleans in 1962 but nevertheless she
had pleaded that Nii Abossey Okai II, the Akumajay Manche, conveyed the land to her
afresh in January 1970. Indeed, in evidence she completely abandoned the customary grant
and hinged her claim on the grant of January 1970 which she had consistent with her
evidence, also pleaded as a fresh grant. In my view if her conveyance of 1970 is valid, then
the abandonment of her customary grant is wholly immaterial and is a variation of no
consequence whatsoever in consonance with what I consider to be the correct view
expressed by Apaloo J.S.C. (as he then was ) in his dissenting view in R. T. Briscoe v. Preko
(supra) already referred to herein.
The relevant question therefore to ask is whether the conveyance of 1970, exhibit A, is a
confirmatory grant. The exhibit speaks for

(PAGE 31)

itself. The alleged customary grant on which the plaintiff led no evidence whatsoever is the
second recital in the conveyance. The fourth recital in the deed acknowledged the right of
the vendor as entitled to the land free from all encumbrances, meaning clearly that the land
was not encumbered by any customary grant and in the disposition clause the vendor
conveyed as beneficial owner, e.t.c. If a confirmatory grant is intended, it can only be
affected by the operative or disposition clause of the conveyance and clearly a most casual
reading of the clause reveals that this is not so. It is therefore necessary to find out the legal
significance of recitals generally and of the second recital in particular.

Almost 300 years ago in Bath and Mountague's Case (1693) 3 Cas in Ch 55 at 101 Lord Holt
C.J. declared: "the reciting part of a deed is not at all a necessary part either in law or equity
... it has no effect or operation." (The emphasis is mine.) In this case by the disposition part
of exhibit A, the vendor clearly and plainly purported to convey the land in dispute as
beneficial owner to the plaintiff although the second recital referred to a customary grant by
the Macleans. This reference to a customary grant as can be seen was in no way connected
with any provision in the disposition clause which plainly and unambiguously merely sought
to convey the vendor's beneficial estate to the purchaser. Romily M.R. in Holliday v.
Overton (1852) 14 Beav 467 at 470 indicated that where the disposition clause is
unequivocal, the recitals have no effect on it. He said: "It is impossible by a recital to cut
down the plain effect of the operative part of a deed." And Jessel M.R. in Dawes v. Tredwell
(I 881) 18 Ch.D. 354 at 358-359 expressed similar views when in explaining the relation
between recitals in a deed and the operative clause he stated in his usual apt formulation of
principles the apparently settled rule stating that: “ . . . the rule is, that a recital does not
control the operative part of a deed where the operative part is clear."

In my view on a fair reading of exhibit A it is quite clear that no question of a confirmatory

grant arises on a consideration of the operative part and consequently the conveyance of 14
January 1970 is by all conceivable legal canons of construction a fresh grant. The contrary
view of the Court of Appeal is therefore with the utmost respect erroneous. The Veronica
Borkor document, exhibit E, also had in its recital an alleged customary grant of 1960. This
also would seem to be a false recital and by the same parity of reasoning, in my view, it also
made no difference to the clear tenor of the disposition clause in the said exhibit E. The
legal position therefore, as I see it, is that barring any other objection which can be
legitimately levelled at the legal validity of these two documents, the recitals have no

(PAGE 32)

significant legal effect whatsoever on the disposition parts of these deeds.

The last and what to me, with respect, seems to be a rather extravagant view expressed by
the Court of Appeal in the judgment of Edward Wiredu J.A. is the proposition that in the
situation where neither the plaintiff nor the defendant has title "the law protects the party in
possession at the commencement of the action and that a first trespasser cannot rely on his
earlier unlawful entry to establish his title to land" Apparently at the commencement of the
suit the defendants, the Clocuhs, were in possession and the implication of the proposition is
that assuming the Clocuhs wrongfully dispossessed the plaintiff then since the plaintiff is not
the true owner she cannot maintain an action to protect her possessory title.

It seems to me that the proposition enunciated here is, with respect, patently erroneous in
law. The claim here, of course, is a claim for a declaration of title. Such a claim by one
trespasser against another trespasser will definitely fail since the claim has in law nothing to
do with mere physical possession as such. If, however, the claim were one for possession
and not for a declaration of title then a trespasser in possession who has blatantly ousted a
previous trespasser cannot be protected by the courts whether he comes as a plaintiff or he
is a defendant. The ousted trespasser whether he comes as a plaintiff or is a defendant will
rather have his possessory title protected as against the trespasser and the whole world
except the true owner.

The erroneous view of the law expressed herein that the law protects a trespasser against the
person he had ousted, if at the commencement of the suit the ousting trespasser is in
possession, was strongly pressed on us in Mechanical Lloyd Assembly Plant Ltd. v. Nartey
[1987-88] 2 G.L.R. 598, S.C.. I recall in that case referring to the Privy Council decision in
Wuta-Ofei v. Danquah [1961] G.L.R. 487, P.C. and I said at 636:

"In Wuta-Ofei v. Danquah . . . the trespasser who ousted the person in possession was in
possession at the commencement of the suit. That possession of his did not avail him
although at the commencement of the suit, the legal title in the land in question was in the
government and not in any of the litigating parties. The original possessor who was ousted
was protected by the court."

From my analysis of the ratio decidendi which informed the decision of the Court of Appeal
it is clear that the decision is, with the greatest respect, based on faulty reasoning and unless
other adequate and right reasons can be found to sustain it the said decision cannot be
supported as a legal decision: see the views of Jessel M.R. in Osborne v.

(PAGE 33)

Rowlett (1880) 13 Ch.D. 774 at 785 and of Amissah J.A. sitting as an additional judge of the
High Court in Asiedu v. The Republic [1967] G.L.R. 589 at 591.

As I have already pointed out, the approach of the circuit court in this case was dictated by
the constructive registration doctrine in the ratio decidendi of Ntem v. Ankwandah (supra).
It is remarkable that the Court of Appeal did not approve or reject it, preferring to be
content to adopt the alternative reasoning of a confirmatory grant of a void title which in my
opinion (as I hope I have shown in this judgment) is clearly also unsatisfactory. The
inevitable question in the circumstances is whether the circuit court applied the correct
principle when it had recourse to the constructive registration doctrine which the Court of
Appeal itself had, on construction, created for the legal system.
The constructive registration doctrine, a novel equity peculiar to our jurisdiction, had its
rather hardly legitimate conception on 14 March 1977 in some observation of Apaloo J.A.
(as he was then) in Ussher v. Darko [1977] 1 G.L.R. 476 at 489, C.A.. In my opinion the
doctrine anticipated by the Apaloo observation appears respectfully to be unnecessary for
the decision in the Ussher case. The effect of the observation neatly summed up in holding
(5) at 478 is that if an unregistered conveyance in favour of a plaintiff were in writing and it
described the premises and stated the consideration or price, then it satisfies section 4 of the
Statute of Frauds, 1677 as preserved by section 19 of the Contracts Act, 1960 (Act 25) and
thus operates to confer on the plaintiff an equitable title in the property. This, with respect,
is not logically sound, since all conveyances, whether registered or not, ordinarily are in
writing, state the consideration or price and describe the premises.

Without intending any disrespect, I think this equity so informally raised in this circuitous
and subtle manner deserves to be tested against the relevant specific statutory provision and
a string of decided authorities dealing with the legal effect of unregistered conveyances. This
is because barely three months after its conception it was formally born and outdoored in
Ntem v. Ankwandah [1977] 2 G.L.R. 452, C.A. That case would seem to involve the
purchase of land from the same Akumajay stool as the vendor in the present case. Its
similarity in significant particulars with the facts of this case is really remarkable and
uncanny.

The purchaser, the respondent in that case, took his conveyance in 1970 from a committee
of the stool and it was concurred in by the ostensible occupant of the stool who was then
not yet gazetted. Because the stool occupant had not been gazetted the Registrar of Lands
refused registration, when the respondent attempted to register

(Page 34)

the document after stamping. By 1973 when his conveyance was still not registered, the
respondent became aware of acts of trespass being committed on the land by the appellant
and after failing to have the matter settled, he sued the appellant claiming a declaration of
title, recovery of possession and damages for trespass. In the meantime the appellant
commenced building operations on the land and ignored all warnings. An application for
interim injunction against him failed and by the time the case came up for hearing at the
circuit court the appellant had completed the erection of a substantial building on the plot.
The circuit court gave judgment in favour of the respondent for all the reliefs he sought.

Now under section 24 (1) of the Land Registry Act, 1962 (Act 122), it is provided, inter alia,
that "an instrument other than (a) a will or (b) a judge's certificate, first executed after the
commencement of the Act shall be of no effect until it is registered." (The emphasis is
mine.) In spite of this clear and mandatory provisions of section 24 (1) of Act 122 the appeal
of the appellant was dismissed. Apaloo C.J. persuaded no doubt by the seemingly fair and
just dictum he had spelled out in Ussher v. Darko (supra) dismissed the appeal. His reasons,
set out, inter alia, at 453-454 in the headnotes are quite simple:

"The registrar of lands ... had no right to refuse to register the document . . . Registration of
a deed under Act 122 did not constitute a state guaranteed title. As the deed was stamped it
was admissible in evidence in proof of title which registration aside, was valid. The
respondent's title, in the circumstances, was constructively registered. Consequently her title
was enforceable at law as if it had been registered."

(The emphasis is mine.)

The 1977 Court of Appeal, under the then extant provision of article 109 (3) of the
Constitution, 1969 was bound by its own previous decisions on questions of law. At the
time in June 1977 when Ntem v. Ankwandah was thus decided, the Court of Appeal had in
three separate judgments delivered on 20 December 1970, 19 July 1971 and 27 July 1973
respectively given decisions expounding the legal effect of section 24 (1) of Act 122.

In the first of the cases, Odoi v. Hammond [1971] 1 G.L.R. 375, C.A., a plaintiff in an action
for a declaration of title relied, inter alia, on an unregistered conveyance, exhibit B, executed
by the same vendor who had also executed a deed in favour of the defendant. The
defendant registered his conveyance. At the trial, Apaloo J.A. (as he then was) sitting as an
additional judge of the High Court, took the view, inter alia, that non-registration was not
fatal to the title of the plaintiff since

(PAGE 35)

the plaintiff had a customary grant in 1949 and exhibit B executed on 22 November 1964
was merely a confirmatory grant. The plaintiff’s customary grant of 1949 would seem to be
defective because it did not emanate from the proper grantors having regard to the decision
of the erstwhile Supreme Court in Akwei v. Awuletey [1960] G.L.R. 231, S.C. and the
confirmatory grant was an apparent strategy to give it validity. Because the said 1949
customary grant was prior in time to the registered conveyance of 1964 Apaloo J.A. (as he
then was) felt no difficulty in affording priority to the unregistered document on the ground
that it merely evidenced a prior customary grant and he accordingly gave judgment in favour
of the plaintiff for a declaration of title.

At the Court of Appeal, Azu Crabbe J.A. (as he then was) with whom Sowah J.A. (as he then
was ) concurred, in allowing the appeal and setting aside the High Court judgment, dissented
very firmly from the Apaloo ratio when he said at 391:

"I dissent, with the greatest respect, from the view expressed by the learned trial judge that
the plaintiff's case was not affected by the non-registration of exhibit E. It was not disputed
that exhibit E was not registered in accordance with the provisions of the Land Registry Act,
1962 (Act 122). Section 24 of the Act makes registration a sine qua non for the validity of an
instrument other than a will or judge's certificate."

In the leading case decided on 19 July 1971, Asare v. Brobbey [1971] 2 G.L.R. 331, C.A., a
mortgagee who had not registered the mortgage document, exercised the power of sale in
the mortgage deed. The High Court held that the sale was in order but on appeal, Archer
J.A. (as he then was) at 340 delivering the judgment of the court said:

“ . . . the court below delivered a judgment contrary to the express provision of section 24
(1) of the Land Registry Act, 1962, by conferring rights when the statute provides that no
legal rights can arise from an unregistered document affecting land. The sale . . . was
therefore a nullity and the appeal should be allowed as the appellant is entitled to all the
reliefs he seeks."

(The emphasis is mine.) And Archer J.A. (as he then was) took the trouble to warn all
conveyancers of the serious implications of section 24 (1) of Act 122 when he gave this
timely caveat at 339:

“ . . . since November 1962, all documents relating to land must be registered in order to
have any legal effect at all. That is an innovation and it has such serious consequences that
no conveyancer should fail to advise his client to comply with section 24 of Act 122."

He also indicated clearly the nature of the duty of a court when tempted or invited to ignore
the provisions of a statute by drawing attention at 338 of his judgment to a statement of
Scrutton L.J. in Phillips v. Copping [1935] 1 K.B. 15 at 21, C.A. where the learned judge had
in effect apparently indicated that it was the duty of the court when asked to give judgment
which is contrary to a statute to refuse the invitation. I think this admirable decision of
Archer J.A. (as he then was) teaches clearly that a court has no business to ignore the express
and unambiguous provisions of a statute by any ingenious and subtle form of argument.

The 1973 case reported as Amefinu v. Odametey [1977] 2 G.L.R. 135, C.A. is for all practical
purposes on all fours with the instant case. In that case, the plaintiff sued the defendant for
declaration of title and damages for trespass. Both the plaintiff and the defendant derived
title from the same vendor. The plaintiff had his conveyance on 5 May 1967 and although
she presented it for registration, it had not been registered by the time she instituted the
action. The defendant on the other hand had his conveyance on 25 March 1968. Before the
execution of the conveyance he made a search which disclosed no other transaction on the
land except that the vendor was the owner. Accordingly, he registered his conveyance on 17
April 1968. The plaintiff's action having failed she appealed and argued, inter alia, that
although non-registration of a conveyance is invalid and of no effect under Act 122,
nevertheless her conveyance took precedence over that of the defendant in as much as she
presented her deed of conveyance to the appropriate authority for registration. Her
argument was that in the absence of any default on her part to account for the non-
registration, the rigours of Act 122 should not in fairness be applied to her case. Moreover
she argued that her vendor having by the conveyance to her on 5 May 1967 divested himself
of his interest in the land, he was incapable under the nemo dat quod non habet principle to
subsequently in 1968 give a valid title of the same land to the defendant. Annan J.A.
delivering the unanimous judgment of the court applied the previous reasoning of the court
in Odoi v. Hammond (supra) and Asare v. Brobbey (supra) and as is set out in the headnote
at 137 held that:

"The application of the principle nemo dat quod non habet depended on the plaintiff
making her case that title had validly been transferred to her before the subsequent
conveyance. Since the conveyance relied on by the plaintiff was executed in 1967 it was
squarely caught by the Land Registry Act, 1962, which rendered it invalid until it was
registered. Inasmuch as the plaintiff could not show that the vendor had effectively divested
himself of title in her favour without relying on the unregistered conveyance, she could not
take advantage of the nemo dat rule."
It is worthy of note in this Amefinu case that the plaintiff therein and the plaintiff herein had
submitted their documents to the Land Registry and the failure to have their documents
registered was no fault of theirs. It would seem quite clear therefore that on 27 June 1977,
the date of the decision in Ntem v. Ankwandah (supra), there was in existence by virtue of
article 109 (3) of the Constitution, 1969, three previous decisions of the Court of Appeal
which were completely binding on the court. Admittedly, some confusion in those three
decisions had arisen because of the imprecise language which had seeped into the judgment
as a result of the indiscriminate use of the words "void", "ineffective" and "invalid." The
simple use of these words does not really make any difference whatsoever in all cases where
at the conclusion of a trial the conveyance in dispute remained unregistered. The words
used in section 24 (1) of Act 122 are: "shall be of no effect until it is registered." Clearly until
the instrument is registered it is statutorily declared to be "of no effect." This must mean that
it is not void for on registration it will be valid from the date of registration. This is because
legally speaking, "void" in law is a nullity. It is something which has no legal force and is
incapable of having legal force.

The linguistic difficulty posed by the "void" and "ineffective” dichotomy can best be
resolved by recourse to commonsense and the logic of the common law. By this perspective
of looking at the problem it would appear that the difficulty arises because of lack of
appreciation of the fact that words like "void", "invalid" and "ineffective" apart from having
ordinary dictionary meanings, do also have legal meanings, especially the word "void." An
average dictionary for instance would give the meaning of "void" as: "without force or
effect" but a law dictionary would give the meaning as: "of no legal effect" or "a nullity."
Clearly when in a judgment a judge uses the word void, he may very well be thinking not of
its legal meaning but rather its dictionary meaning or vice versa. I think the supposed
problem said to arise because of the indiscriminate use of these terms is nothing but a storm
in a tea cup. The semantic insistence on the integrity of his dictum as justification in Ntem
v. Ankwandah (supra) at 458-495 to criticise the view of Azu Crabbe J.A. (as he then was) in
Odoi v. Hammond (supra) is with all due respect quite unrealistic, for the Azu Crabbe
interpretation of section 24 (1) of Act 122 is clearly unexceptionable and was indeed applied
in Amefinu v. Odametey (supra) at 142-143 and approved in effect by the judgment of the
Supreme Court in Hammond v. Odoi [1982-83] G.L.R. 1215, S.C.

I think the clear path indicated by case law in the tradition of the stare decisis principle is
that the doctrine of constructive registration hinted at in Ussher v. Darko (supra) and which
flowered to fruition in Ntem v. Ankwandah is with respect a proposition of law which
conflicts with respectable case law and flies in the face of the unambiguous provision
contained in section 24 (1) of Act 122. It is in my respectful opinion an aberrant and
erroneous doctrine. I would therefore without hesitation overrule the decision in Ntem v.
Ankwandah (supra) so that it will henceforth cease to impel the Court of Appeal and the
other lower courts to follow it as they have done in the past.

The Ntem v. Ankwandah ratio was followed in Mechanical Lloyd Assembly Plant Ltd v.
Nartey [1984-86] 1 G.L.R. 412, C.A., but that decision was in effect specifically repudiated
and set aside by the Supreme Court in Nartey v. Mechanical Lloyd Assembly Plant Ltd.
(supra) where the line of cases blazed by Asare v. Brobbey (supra), Amefinu v. Odametey
(supra) and Odoi v. Hammond (supra) were approved.
Apparently the Court of Appeal is now no more enamoured of the Ntem v. Ankwandah
reasoning for in Ayitey v. Mantey [1984-86] 1 G.L.R. 552, C.A., Francois J.A. (as he then
was) presiding over the Court of Appeal on 18 December 1984 would seem to have tolled its
death knell when he boldly but regretfully proclaimed at 559:

"In the Anglo-Saxon jurisdiction from which our courts derive their existence equitable relief
has been born of the assiduous effort that had been utilised to ameliorate the harshness and
unjust rigours of the law. It has required stalwart pioneers to forge equitable principles to
promote fairness and relief. It is in this vein that the doctrine 'of constructive registration,
saw the light of day in Ntem v. Ankwandah (supra). The doctrine has however been
doubted by academicians and cannot co-exist with the Amefinu decision. Though a party to
the decision in Ntem v. Ankwandah, I must confess to a lack of confidence in the
correctness of the decision on the aspect of constructive registration, in view of the doubts
on its viability which the Amefinu case proclaims. I find myself in good company, however,
since the author of the doctrine, the learned Chief Justice, did not attempt to justify or
defend the principle when the opportunity offered itself in the more recent case of Ussher v.
Darko [1977] 1 G.L.R. 376, C.A. The Chief Justice was content instead to examine the
effect of Act 122 and give fulsome approval to the decisions of Asare v. Brobbey (supra) and
Amefinu v. Odametey (supra). Perhaps a latter day Chancery giant may spring up to put life
into this equitable concept. Dum spiro Spero."

In fairness to the learned Chief Justice, I must, with all due respect, state contrary to my
learned brother's view that in Ussher v. Darko, he would appear not to have had any
opportunity to defend his position. Ussher v. Darko antedated Ntem v. Ankwandah.
Ussher was decided on 14 March 1977 and the decision in Ntem v. Ankwandah was given
on 27 June 1977. It was therefore obviously impossible for the Ankwandah case to have
been considered in Ussher v. Darko. Ussher v. Darko itself was indeed a forerunner of what
was to crystallise in Ntem v. Ankwandah. In fact as I have endeavoured to show in this
judgment, when Ntem v. Ankwandah was being decided the learned Chief Justice had the
benefit of the binding decisions of Odoi v. Hammond (supra), Asare v. Brobbey (supra),
Amefinu v. Odametey (supra) and indeed his dictum in Ussher v. Darko (supra).

From my sojourn into the case law surrounding section 24 (1) of Act 122 and the conclusion
derivable from my analysis, it is clear that the learned circuit court judge erred in applying the
Ntem v. Ankwandah ratio of the discreditable doctrine of "constructive registration" to give
legal title to the plaintiff. The effect of this indulgence is the consequential priority given to
the plaintiff's document and which was backdated to 1970 so as to defeat the second
defendant's, Moses Clocuh's, estate which was founded on a document that had been
stamped, had obtained concurrence and had been registered in 1976. Even if this
questionable constructive title can be justified, it was quite clear that the plaintiff did not
obtain concurrence, and this circumstance will certainly nullify or at least invalidate the grant,
for by section 8 (1) of the Administration of Lands Act, 1962 (Act 123), it is provided as
follows:

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

And in section 8 (6) it is provided that "Any transaction entered into in contravention of the
provisions of this section shall be void."

In the Supreme Court case of Nartey v. Mechanical Lloyd Assembly Plant Ltd. (supra)
decided on 19 May 1988; it was held that non-compliance with the concurrence provision of
Act 123 by a purchaser of stool land would invalidate the conveyance. The land, the subject
matter of the dispute in this case, was admitted by all parties to be stool land. Concurrence
is consequently a sine qua non for the validity of any transaction entered into for its disposal
for valuable consideration. In the said Supreme Court decision, i.e. Nartey v. Mechanical
Lloyd (supra) at 357, I said of an alleged purchaser of stool land who had not obtained
concurrence under sections 1 and 8 of Act 123:

"By the said provisions of sections 1 and 8 of Act 123 he needs the concurrence of the
Secretary for Lands and this has not been obtained. The inevitable legal consequence is that
the grant is of no legal effect whatsoever and as long as it is even now without concurrence
it is void."

See also the admirable decision of Francois J.A. (as he then was) in Timber and Transport
Saw Milling Co. Ltd. v. Kataban Timbers Co. Ltd. [1975] 2 G.L.R. 62 at 67, C.A.

In my view, for lack of registration under Act 122 and concurrence under Act 123, the
plaintiff cannot maintain an action on the strength of the conveyance which the Akumajay
stool gave to her in 1970. A line of cases considered in this judgment beginning with Odoi
v. Hammond (supra) and followed by Asare v. Brobbey (supra) and ending with Nartey v.
Mechanical Lloyd (supra) supports this view. This ground of decision is what the lower
courts should have utilised. They did not do so and the question is whether we can now do
so. Article 116 (4) of the Constitution, 1979 in spelling out our jurisdiction in hearing
appeals provides, inter alia:

"(4) For the purposes of hearing and determining a matter within its jurisdiction and the
amendment, execution or the enforcement of a judgment or order made on any such matter,
and for the purposes of any other authority, expressly or by necessary implication given to
the Supreme Court by this Constitution or any other law, the Supreme Court shall have all
the powers, authority and jurisdiction vested in any Court established by this Constitution or
any other law."

Clearly we have jurisdiction to do what the lower courts should have done, and therefore for
the reasons which I have painstakingly given in this judgment I would opt to dismiss the
appeal.

I cannot, however, end this judgment without responding to the disgraceful practice by
which some dishonest land owners convey the same land to different purchasers. It is the
glaring hardship the first purchasers suffer that induced Apaloo C.J. in an admittedly
honourable exercise of his judicial power to invent the doctrine of constructive registration
in the interest of a somewhat extra-judicial concept of justice so as to circumvent and avoid
the provisions of section 24 (1) of Act 122 in order to protect such innocent purchasers.
Innocuously conceived as a protective device, it equally inadvertently creates intolerable
hardship on an equally blameless purchaser who had in compliance with the law rather done
all that the law decrees he should do to obtain title. Surely in such a situation it is obviously
inequitable to permit a legal estate to be defeated by an equitable interest. Clearly since such
documents are denied any effect, legal or otherwise until registration, the unregistered
document cannot before registration have any effect of divesting the grantor of his interest
or of reposing an interest on the alleged grantee, which can evoke the nemo dat rule.

Probably the time is now due for the legislature to take a second look at Act 122. It has
operated for well over 25 years and its shortcomings and potential for fraudulent deals are
now transparent. Of course in clear cases of fraud, the registered proprietor implicated in
the fraud cannot take advantage of the statute because fraud vitiates all transactions: see
Dzotepe v. Hahormene III [1987-88] 2 G.L.R. 681, S.C. A reform in the law that may meet
the hardships here without violence to the integrity of the Land Registry regime is what is
needed today. Consideration should be given by the Law Reform Commission to a
provision by which researchers in the Lands Registry are supplied information on all
applications for registration already with the Lands Department on the dates of their inquiry.
A time limit not exceeding, say six months, for registration after which applications lapse
should be considered. And the registration when ultimately effected in cases where the
applicant has done all that is required of him on the date of his application, can be made
retrospective to the date of his application, provided no application prior to his, is at the
registry.

Be these as they may, of the two documents in this case one is registered and has complied
with all the statutory requirements. The other is an unregistered document; so by the legal
criteria I have expounded in this judgment the registered deed prevails over the unregistered
document. As the registered document belongs to the defendant, it is my view that the
defendant's title is superior. It follows therefore that the appeal fails and it is accordingly
dismissed with costs.

Adade J.S.C. I agree only with the general conclusion that the appeal fails and ought to be
dismissed.

Francois J.S.C. I agree with the judgment delivered.

Wuaku J.S.C. I am in agreement with the judgment read by my brother Taylor J.S.C. I
concur that the appeal be dismissed.

Amua-Sekyi J.S.C. I agree that the appeal be dismissed. At the trial both the plaintiff and
the defendant tendered in evidence documents of title which acknowledged the Akumajay
stool as the original owners of the land. That of the plaintiff is dated 1970, and that of the
defendant, 1976. However it was found by the trial judge, and disputed by the plaintiff, that
the prior customary grant recited in her document was void as having been made by persons
with no right to convey the land. It followed that if the deed of 1970 was confirmatory of
the void customary grant, it would also be void even though it was ostensibly made by the
Akumajay stool.
The relevant pleadings are to be found in paragraphs 2 and 5 of the statement of claim and
paragraph 3 of the reply to the defence. In the former, the plaintiff averred as follows:

"2 The plaintiff became seised as owner by virtue of a customary grant made to her by
the Maclean family in the year 1962 . . .

5. That the plaintiff says that on 11 January 1970 the late Abossey Okai II conveyed the said
land to her and the same was stamped as No. AC 2131370 and she immediately sent the said
conveyance to the Lands Registry for it to be processed and the same was numbered as
32000/20127."

And in the latter, she said:

"3. In further answer to paragraphs 2 and 3 the plaintiff avers that she obtained a
customary grant from the Akumajay stool and afterwards the late Nii Abossey Okai II
made a document to her to confirm the customary grant which said documents she
submitted to the Lands Registry for registration."

Thus, it is apparent that whereas in the statement of claim the plaintiff relied on two separate
grants of the same land to her, in the reply she averred that the grant by the Akumajay stool
was confirmatory of the earlier customary grant by the Maclean family.

In this state of uncertainty, what matters is the evidence adduced in support of the grant.
The plaintiff tendered her document of title in evidence. It was marked exhibit A and reads
in part:

"THIS INDENTURE made 14 January in the year of Our Lord, One Thousand Nine
Hundred and Seventy (1970) BETWEEN NII ABOSSEY OKAI II, Abossey Okai Mantse
and at the date lawful representative and accredited head of the Akumajay division of Accra
in the Eastern Region of the Republic of Ghana with the consent concurrence and approval
of the principal elders and councillors of the Akumajay stool acting for themselves and as
representatives of the Akumajay people and all other persons whose consent and
concurrence is requisite or necessary for the valid grant or alienation of any land or other
property of the stool which consent and concurrence is hereby testified by some such
principal elders and councillors subscribing their names as witnesses to these presents
(hereinafter called the VENDOR) which expression where the context so admits or requires
shall include his heirs, successors in office, personal representatives and assigns of one part
and ALBERTINA AMAKUMAH ODAMETEY, also of Accra aforesaid (hereinafter called
the 'PURCHASER' which expression where the context so admits or requires include heirs,
personal representatives, successors and assigns) of the other part ... WHEREAS in or about
the year 1962 THE MACLEANS customarily granted and conveyed the land and
hereditaments hereafter described onto the purchaser herein free from all encumbrances and
the purchaser has since that date been in undisputed occupation and possession of the same
but no document was executed between the parties to perpetuate the said grant AND
WHEREAS the purchaser has now found it expedient that the said grant be evidenced by
the written deed and has approached the present mantse for such a title deed which he has
agreed to execute . . .
NOW THEREFORE THIS INDENTURE WITNESSETH that in pursuance of the said
agreement ... the vendor as absolute and BENEFICIAL OWNER for and on behalf of the
said stool doth hereby GRANT and CONVEY unto the purchaser her heirs, personal
representatives, successors and assigns ALL THAT PIECE OR PARCEL OF LAND situate
lying and being at ABOSSEY OKAI Accra aforesaid...”

These facts, which are recited in a written instrument, are conclusively presumed to be true
as between the parties to the instrument: see section 25 (1) of the Evidence Decree, 1975
(N.R.C.D. 323). The document shows that the intention of the parties was to provide
written evidence of the customary grant made by the Maclean family, in other words, to
confirm it.

The vendor of the defendants was one Veronica Borkor. She too relied on a prior
customary grant as shown by exhibit E which reads in part as follows:

"THIS INDENTURE made 21 April 1976 BETWEEN NII AYIKAI STEPHENS,

Dzasetse and Acting Head of Akumajay Division of Accra, with the consent and
concurrence of the principal members of the said stool whose consent and concurrences are
necessary or requisite by customary law for the valid alienation or disposition of any land or
other property of the said stool and which consent and concurrence are hereby testified by
some of the principal members aforesaid witnessing the execution of these presents
(hereinafter called 'THE VENDOR') of the one part and VERONICA BORKOR also of
Accra (hereinafter called 'THE PURCHASER') of the other part.

1. In or about the year 1960 Nii Abossey Okai II granted the land and hereditaments
hereinafter described unto the purchaser but no document was executed between the
parties to perpetuate the said grant.
2. The purchaser has now found it expedient that the said grant be evidenced by a deed
and has approached the vendor herein for such a title deed which he had agreed to
execute.
3. The vendor as owner hereby CONVEYS unto the purchaser the said land forever . . . "

Therefore, even if the plaintiff's deed of 1970 was not confirmatory of the customary grant
of 1962 but a fresh grant, it could not have been lawfully made unless Borkor's customary
grant of 1960 was also void. The trial judge thought that it was and gave as her reason the
fact that Nii Abossey Okai II who was said to have made it was not then Akumajay Manche;
Nii Ayikai II having died in 1964. This last fact may be accepted as true but I am satisfied
that if the trial judge had considered the decision of the Privy Council in the case of Nii
Abossey-Okai II v. Nii Ayikai II (1950) 12 W.A.C.A. 37 she would have appreciated that it
was not necessary for Nii Abossey Okai II to have been Akumajay Mantse or Acting Mantse
to have made a customary grant of the land. In that case, in which the Abossey Okai family
claimed to be usufructuary owners of what may for convenience be termed Abossey Okai
lands, it was held that they were caretakers with a right to make grants of those land subject
to the approval of the Akumajay stool. It is on record that when Nii Ayikai II died, Nii
Abossey Okai II became regent or acting Mantse and it was in this capacity that he executed
exhibit A in favour of the plaintiff. In my view, having regard to the prior customary grant
made to Borkor in 1960 he could not lawfully do so. Thus, whichever way he looks at it, the
plaintiff failed to prove her title to the land in dispute.

Before I end, let me say that I have considered section 24 (1) of the Land Registry Act, 1962
(Act 122) which provides that an instrument shall be of no effect until it is registered. In
Ntem v. Ankwandah [1977] 2 G.L.R. 452, C.A., the Court of Appeal held that where a
document was presented for registration and it was wrongfully refused it was deemed to
have been registered and took effect notwithstanding the absence of registration. I think
that is how a court of equity would regard the matter. I fully support the decision.
However, I do not see that the case applies to this suit because even though the plaintiff's
document was a long time in the Lands Registry without being attended to it was duly
registered before the conclusion of the trial. Thus, provided section 26 (2) of Act 122 was
complied with (and this may fairly be assumed in favour of the plaintiff) exhibit A took
effect from the date of its execution, that is in 1970. In spite of this the plaintiff got nothing
because her grantors, be they the Macleans or the Akumajay stool, had no title they could
lawfully convey: see Danquah v. Wuta-Ofei and Bonne (1936) 2 W.A.L.R. 185; W.A.C.A.
affirmed sub. nom. Wuta-Ofei v. Danquah [1961] G.L.R. 487, P.C.

For the reasons given above, I am of the opinion that the Court of Appeal was right in
setting aside the decision of the circuit court. I would therefore dismiss this appeal.

Appeal dismissed.

L.K.A.