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v. Dahali

[1984-86] 2 GLR 774

Court of Appeal, Accra

25 July 1985

Appeal By the plaintiff from the decision of the High Court in an action

for, inter aim an action for, inter alia, declaration of title to and recovery of

possession of a house built by her father where in title in the house was declared

in favor of the defendant. The facts are sufficiently set out in the judgment of

Taylor JSC.

Taylor JSC. We have already allowed the appeal in this case, reversed the

decision of the High court and given judgment in favor of the plaintiff-appellant

but we reserved our reasons for the said judgment. I now proceed to give the

resume of the genealogy of the litigants and the facts which have led to this is

very necessary to an understanding of the judgment.

The plaintiff who is the appellant before us is the daughter of one Saaka

Dogomba who from the evidence must have died about 1948 or thereabout in

Pong Tamale. She is his only surviving child. The mother of the defendant,

the respondent herein, was one Nabia Dahali decreased, who was herself the

daughter of a widow, one Napari Yemo, who also died many years ago.

The case which the plaintiff put up at the trial and which was accepted by

the trial court was that her father, the late Saaka Dagomba built a house No

G30 at Tamale durting his lifetime and lived there until his brother Neondo who

was a chief in a village in Pong Tamale died, when on succeeding him as a chief

he moved from the said house to stay in Pong Tamale in the style of a chief.

Before moving to Pong Tamale the late Saaka Dagomba allowed his friend

called Suguri to live with him in said house at Tamale. The plaintiff was born

in the house. When suguri's aunt, the said Napari Yemo, was bereaved by the

loss of her husband who was then chief of Karaga, Saaka Dagomba permitted

her to live in the house with her nephew Suguri At that time a relative of saaka

Dagomba called of Mahama was also living in the house and on saaka ascending

the said position of chief in the village in Pong Tamale, he left his house and the

documents on it, in the care of Mahama and suguri. The documents from the

evidence would seem to be bills for water rates. When Saaka Dagomba went

to his inheritance at Pong Tamale his relative, th3 said Mahama, traveled away

from Tamale and later died.

In the meantime while Saaka Dagomba was at Pong Tamale, Nabia Dahali

whom the defendant said was her mother came and lived in the house. She was

as already indicated the daughter of Napari Yemo and stayed in the house to

look after her old mother.

Surguri, the friend of saaka Dagomba, left the house for Dunsetana village

to farm and later he said documents and the house with the apparent approval

of saaka Dagomba in the sole care of Nabia Dahali. Whilst Nabia Dahali was

thus living in the house one room and a verandah collapsed and although saaka

Dagomba objected to her rebuilding the collapsed structure the nonetheless

rebuilt it at a cost of 75 .Saaka Dagomba in the sole care of Nabia Dahali

.She pleaded that accepting the money would mean that Saaka Dagomba was

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evicting her from his house and she brought people to render apology to Saaka

Dagomba. Saaka Dagomba pointed out that he did not want anybody to trouble

his children and he introduced the plaintiff to Nabia Dahali as his daughter.

When Saaka Dagomba died, the plaintiff was then living in Takoradi. She

came for the funeral and when she came to Tamale again for the final perfor-

mance of the funeral rites, She reminded Nabia Dahali that the house belonged

of her father. It was about four years later that Nabia Dahali died. Some time

in 1979 the property of her grandmother Napari Yemo which she had inherited

refused to permit the extensions and so the plaintiff sued claiming:

(a) declaration of title to house No G30, Tamale;

(b) recovery of possession;

(c) perpetual injunction against the defendant;

(d) mense profits; and

(e) any further relief.

From the evidence it appears house No G30 was put in or about 1920 on

land given to the plaintiff's father Saaka Dagomba by the chief of Tamale. The

defendant claimed that her grandmother , the old lady Napari Yemo, was the

person who built house No G30 .The overwhelming evidence, however which

the high Court judge accepted negative this contention of the defendant. Fur-

thermore, it was established in evidence, profferd by both the plaintiff and the

defendant that Napari Yemo and her daughter Nabia Dahali have no family re-

lation ship whatever with Saaka Dagomba and the plaintiff led evidence which

the court accepted showing that she is not merely the daughter but also the sole

surviving relative of Saaka Dagomba.

The learned High Court judge accepted the substantive evidence of the

plaintiff and his witness but was nonetheless impressed by three factual cir-

cumstances. The first is that the actual owner of the house, Saaka Dagomba,

died some time in 1948 but the occupants of the house had been Napari Yemo

and her descendants represented now by the defendant. The plaintiff it would

seem lived in Takoradi and it was only when she came down to live in Tamale

in 1979 that she tried to assert her interest. Secondly, on 31 may 1957, the

Government of Dahali, the mother of the defendant, a year to year tendency

of the plot of land on which house NO G30 had been built, and thirdly, acting

under the provisions of section 7 (l) of the Administration of Lands Act, 1962

(EI 109 of 1963), was passed on 4 September 1963 by which inter alia. All skin

lands, within the area of authority of the Tamale Urban Council was declared

to be vested in the President in trust.

In view of these circumstances and the facts, the High Court judge in ap-

praising the parent and consequential legal position made a number of pro-

nouncements which are illustrative of the ratio decided of his decision, typical

of which are the following:

"(1) EI 109 of made pursuant to section 7 of the Administration of Lands Acts

1962 (Act's 123) operated to diverst the plaintiff of her customary title.

(2) The plaintiff apart from giving evidence to show that her father built

the tendered an exhibit which showed that title to the land was in the

Government of Ghana and that the Government of Ghana has given a

lease to the defendant's mother.

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(3) There is overwhelming evidence that the defendant and his family have

been in possession since 1957. The plaintiff is not claming through the

Government of Ghana; she claims through her father who has who has no

title and I dare say title through the Government of Ghana. The lease the

defendant obtained from the Ghana Government has not been set aside

as having been obtained by fraud."

Thus because the defendant's predecessor- in title has been in possession at

least since 19587 and the fact that the defendant's processor has a lease from the

Government of Ghana led the High Court to dismiss the claims of the plaintiff

and to give judgment for the defendant.

Before dealing with EI 109 of 1963 and the significance of the government

lease it seems to me the question of the long possession of the defendant and

her predecessor needs examination. In vanderpuye v Atia, Court of Appeal ,20

March 1967, unreported, Apaloo JA (as he then was ) reiterated the well-known

and hackneyed principle governing long possession when he said:

"It is trite learning that a person in possession of land, however

that possession was acquired, has a title to that land which is good

against the whole world expect the true owner or a person claiming

through the true owner."

(The emphasis is is mine ) it is clear on principle therefore that long pos-

sessions per se does avail the possessor against a claimant title from the true

owner. What is the true owner or can show that he or she derives title from

the true owner. What is the nature of the interest of Nabia Dahali and indeed

of Napari Yemo, in the house in dispute? From the incontrovertible evidence of

the plaintiff, they were licensees who have enjoyed undisturbed possession for

admittedly many years. As the Court of Appeal held in Mensah v. Blow [1967]

GLR 424, CA a licensee under customary law does not by virtue of long user

per se acquire an interest in the property which would entitle him to deprive

the licensor or his successors of their ownership. Subject of course to the pro-

visions of the limitation Decree, 1975 (NRCD 4) which is not relevant to the

facts of this case, the Mensah v. Blow proposition is the proper legal principle

applicacable in this case.

It is noteworthy that the evidence of the plaintiff that her father Saaka

Dagomba built the house on land given to him by the traditional authority was

countered by evidence that the defendant held a government lease in the name

of her predecessor -in -title, Nabia Dahali. The true legal owner of the lease

as well as the alleged purport of EI 109 of 1965 must in the circumstances be

decisive factors in this case.

On the available evidence, it is clear that as far back as 1920, the chief

of Tamale gave the Dagomba is of the Dagomba tribe and is entitled under

Dagomba customary law to be given part of the land attached to the Dagomba

skin for building purpose. Once he has exercised this right and has built on it,

he has a usufruct of that land which land, just cause be taken away from him

by the skin. The land, now a built on plot, ceased to be vacant land attached to

the skin; it now a built on plot, ceased to be vacant land attached to the skin:

it now becomes land the property of Saaka Dagomba until on the failure of his

heirs the land reverts to the skin. In such circumstances El 109 of 1963 cannot

be said to cover the usufructuary interest which Saaka Dagomba and his her is

from assigns have in plot No G 30. In the circumstances, it is my view that the

learned High Court judge erred in law when he held that El 109 "operated to

divest the plaintiff, the heir of Saaka Dagomba, of her customary title" in the

land on which house No G30 is built.

In any case EI 109 came into force on 4 September 1963, 43 years after the

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land had been allocated and the building had been erected. The executive in-

strument cannot operate retrospectively to extinguish rights acquired in stool

and skin lands before its promulgation. The fundamental rule applicable to

all status and statutory instruments is that prima facie they are prospective

and unless by their specific terms or by necessary implication they have restro-

spective operation they do not affect rights and obligations which have already

crystallized a tthe time they became law.[sic]

The next question is what iss the significance of the government lease?.

That lease was executed on 31 May 1957 and is unquestionably between the

Government of Ghana and Nabia Dahali and it was in respect of the plot of

land on which the building No G 30 stands.

Mr Victor Nkansah, Registrar of Lands and a legal officer of the Lands

Department, Tamale gave evidence for the plaintiff and explained very clearly

the circumstances surrounding the execution of the lease. It was an explanation

culled from documents and circumstances that were not impugned in cross-

examination. According to the said unchallenged evidence of Mr. Nkansah,

before a lease executed in respect of land on which there is already a building,

the lessee must swear to an affidative showing how he or she became the owner

of the building. The policy of the lands Department is to enter into these leases

with the owner of the building or those claiming through such owners. Nabia

Dahali about five years after the death of Saaka Dagomba applied for a lease of

the plot on which Saaka Dagomba had his house to be made in her name and

swore to an affidative before the Government Agent. That affidative showed

how she came by house No G30 and so I set it down here fully:

"In the Magistrate Court of Tamale Northern Territories

In the matter of Estate of Saaka Dagomba (Decd) 1 Nabia Dahali

c/o Mr. R S M Lamashego, House No G30. Tamale, make oath and

say as follows:

1 That Saaka Dagomba who died about five years ago was the

rightful lessee of plot No 30 , Ward G Tamale.

2 That both myself and Suguri Dagomba are the next of kin of

the deceased and being the eldest, I am the rightful heir to the

deceased, movable and immovable property.

3 That the building on the said plot was built about 47 years ago

and has no lease.

4 That I am humbly and respectfully requesting the Government

Agent, Tamale to prepare a lease in my name and that the plot

No 30, Ward G, Tamale shall henceforth remain as a family

property and under any circumstances shall never be sold.

5 That the ground rent and water rate receipt be issued in my

name in future.

Sworn at Tamale, Northern Territories Gold Coast this 18 may 1953

after the contents of this affidative has been read over and inter-

preted in the Nabia Dahali Dagomba language, when she seemed

perfectly .Her x Mark to understand same before appending her

mark

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Before me

(sgd)

Government Agent

(sgd)

Abdulai Yendi

Interpreter and Witness to Mark

Swearing fee of 4/-

paid into chest vide Court Receipt No U 231742

(sgd)
Register

Prepare by
(sgd)
LLW 24740/53

House No G 80, Tamale

637 words-Graits

for three copies_Receipt No"

According to the evidence of Mr. Nkansah the rightful person in whose

name the lease ought to have been prepared was Saaka Dagomba, but obviously

because he was dead and Nabia Dahali were that she was the next of kin the

lease was prepared and executed in her name.

Now the evidence of both the plaintiff and the defendant disclosed clearly

that Suguri and Nabia Dahali were not relatives of Saaka Dagomba and were

certainly not his next kin. His only surviving child and next of kin by Dagomba

custom was the plaintiff in this case and the question therefore is what is the

legal position?

It seems to me that prior to and at the time of the death of Saaka Dagomba,

Nabia Dahali was the caretaker of the house. She was a sort of agent for SAAKA

Dagomba and be agent for Saaka Dagomba and after his death she must in

contemplation of law be considered to be agent and a trustee for the next of

kin. In Halsbury's laws of England (3rd ed) Vol 14, para 1156 at p 625 the

status of an agent in such circumstances was described in terms that I think

apply to Nabia Dahali. It is there stated.

"Apart from the creation of trusts of specific property, the position

held by a person may itself involve confidence so as to impress him

with a fiduciary character, and when he gets possession of money or

other property in this character he holds it as a trustee. This is so

in most cases of agency, since the agent has duties to perform which

involve the placing of confidence in him by the principal."

On the death of Saaka Dagomba and after the plaintiff had reminded Nabia

Dahali that the house belonged to her father, her continued association with

the house as caretaker did make her a trustee of the property for the next of

kin or heir as the rightful beneficiary. After the death of Nabia Dahali, the

position of Naama Dahali, the defendant, cannot be superior to that of her

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mother. She became a constructive trustee. Bowen LJ in the English case of

Soar v. Ashwell [1893] 2 QB 390 at 396, CA at 396, adverted to constructive

trust in such circumstances when he said.

"A constructive trust is one which arises when a stranger to a trust

already constituted is held by the court to be bound in good faith and

in conscience by the trust in behaviour. Such conduct and behaviour

the court construes as involving him in the duties and responsibilities

of a trustee, although but for such conduct and behaviour he would

be a stranger to the trust .A constructive trust is therefore, as has

been said 'a trust to be made out by circumstances."

The High Court judge was, it seems highly impressed by the fact that Nabia

Dahali did obtain a lease in her own name from the Government of Ghana and

the lease has not been set aside and he therefore thought this disabled him

from declaring the plaintiff entitled to the lease. What is the position of a

constructive trustee who obtains a lease. What is the position of a constructive

trustee who obtains a lease In beach of trust in his or her own name? In her

own affidative sworn to on 18 July 12953 she averred "That, Saaka Dagomba

. . . was the rightful lessee of plot No 30, Ward G, Tamale." And although she

was not related to him, she swore falsely that she was his next of kin and on

the strength of this false claim she obtained a lease in her name.

In the same Halsbury's Laws of England (3rd ed), Vol 14, paraa 1155 at pp

624 a rule based on public policy and supported by the following old English

cases: Pickering v. Vowels (1783) 28 ER 1080, James v. Dean (1805) 11 Ves

383; Keech v. Sandford (1726) Cas temp King 61, and Rawe v. Chichester

(1773) Amb 715 at 719, was adverted to, showing that the said Nabia Dahali

cannot profit from her legal ownership in the circumstances. The rule was thus

stated:

"A constructive trust arises when, although there is no express trust

affecting specific property, equity considers that the legal owner

should be treated as a trustee for another. This happens, for in-

stance, when one who is already a trustee takes advantage of his

position to obtain a new legal interest in the property, as where a

trustee of leaseholds takes a new lease in his own name. The rule

applies where a person, although not an express trustee, is in a fidu-

ciary position . . . "

On the basis of this rule, Nabia Dahali in my opinion held the lease in her

name as a trustee for her father, the late Saaka Dagomba. The position of

the defendant in this case is hardly different. Admitted from the nature of the

evidence led by the parties it would seem that the defendant was not aware that

her mother Nabia Dahali was a trustee of the property. Assuming that she did

not know of it, she certainly became aware of the claim of the plaintiff in 1979.

She did not purchase the property, on the contrary she claims she inherited

it from her mother. The property is in my opinion trust property. In Snell's

Principles of Equity (26th ed ) at pp 202-203 the standing of a person In the

position of the defendant who has unwillingly received trust property was in my

view spelt out quite clearly thus:

"A person receiving property subject to a trust ...becomes a con-

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structive trust if ...although he received it without notice of the

trust, he was not a bona fide purchaser for value without notice of

the trust, and yet, after he had subsequently acquired notice of the

trust, he dealt with the property in a manner inconsistent with the

trust."

Lee v. Sankey (1872) KR 15 Eq 204 at 211 was quoted in the text to support

this position. The text then continued at 203:

"It will be seen that it is not enough merely to show that he was not

a purchaser without notice of the trust. Liability as a constructive

trustee will not be imposed on him unless he has knowledge that

a trust exists, though this knowledge may be imputed to him from

the circumstances. If he does not have this Knowledge, and is .not

a bona fled purchaser, he will e a mere innocent volunteer, and

although he will not be chargeable as a trustee if he has parted with

it or mixed it with his own property."

The plaintiff-appellant led evidence as I have already pointed out which was

indisputable that she is the sole heir and next of her father Saaka Dagomba.

She is the sole surviving beneficiary of his estate. Nabia Dahali and after her

death the defendant- respondent held house No G 30 in rust beneficiary who by

the evidence is held appellant. She is therefore entitled to:

(a) a declaration of title to house No G 30 , Temale;

(b) recovery of possession; and

(c) Perpetual injunction against the defendant, her servant and agents.

Nabia Dahail was a licensee and her daughter Nampa Dahali, the respondent

heroin, is equally a licensee for she cannot acquire a greater interest then her

predecessor-in-title. The circumstances, however, do indicate that she is in

all probability an innocent volunteer. For this reason I will make no order in

regard to the fourth claim to mesne profits, contenting myself with her liability

to restore the trust property and give the appellant herein quiet enjoyment

consistent with the principle I have already referred to in Snell.

Accordingly, it is for the reasons I have canvassed aboe that on 26 March

1984, I concurred in allowing her appeal in this case and reveres the decision of

the High Court and gave judgment in her favour vindicating entitlement to the

above relief's.

Edusi J.A. I agree.

Edward Wiredu J.A. I also agree

Appeal allowed.

D.R.K.S.

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