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H. N. O. ABBEY AND ANOTHER
V.
S. K. OLLENU
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
30TH DAY OF JUNE, 1954
2PLR/1954/37 (WACA)
OTHER CITATION(S)
2PLR/1954/37 (WACA)
(1954) XIV WACA PP. 567 – 568
LEX (1954) – XIV WACA
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J. SIERRA LEONE
COUSSEY. J.A.
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BETWEEN:
H. N. O. ABBEY AND ASHALLEY OKOE FOR THEMSELVES AND AS REPRESENTING THE NAH KORLEY FAMILY OF ACCRA – Appellants
AND
S. K. OLLENU, RETIRED DISPENSER – Respondent
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ORIGINATING COURT(S)
Appeal by plaintiffs from decision of Land Court given on appeal from the Native Court: No. 38/53.
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REPRESENTATION
Awoo-Lamptey — for Appellants
Bossman — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Fraud – Acquiescence amounting to fraud – Estoppel – Purchaser not a party in later litigation – Owner standing by – Legal effect
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CASE SUMMARY
One I.F. sold and conveyed land to the respondent, who later built on the land in ignorance of the fact that after his purchase, and before he built, the appellants sued his vendor I.F. and obtained a declaration of title in their favour.
After the building was completed the appellants as plaintiffs sued the respondent in the Native Court and obtained judgment for recovery of possession and mesne profits; this was set aside on appeal by the Land Court; and the appellants appealed to the Court of Appeal.
For them it was argued that the respondent knew of the defect in his title but built nevertheless, and that he was bound by the declaratory judgment; for him that they knowingly stood by whilst he built in ignorance of it.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):
(1) The respondent was not estopped as being privy in estate by a judgment in an action against his vendor commenced after the purchase;
(2) The Land Court Judge was right in holding that all those elements existed in the present case which amounted to fraudulent acquiescence in the plaintiffs.
Cases cited:-
(1) Mercantile Investment and General Trust Co. v. River Plate Trust, Loan, and Agency Co., 1894, 1 Ch. D. 578.
(2) Willmott v. Barber, 15 Ch. D., at p. 105 (where the elements mentioned in Held (2) are set out; they are quoted in the judgment infra).
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This was an appeal from a judgment of Jackson, J., sitting in the Land Court of the Eastern Judicial Division of the Supreme Court, by which he set aside a judgment of the Ga Native Court granting the plaintiffs-appellants recovery of possession and £30 by way of mesne profits in respect of the land described in the Civil Summons.
By an indenture dated 7th September, 1935, one Isaac Fiscian purported to convey the land in question to the defendant-respondent.
It was not disputed that as a result of litigation subsequent to this transaction the appellants established their title to a larger area of land which included the portion of land the subject matter of this suit.
In the year 1940, the respondent commenced building operations on the land which were completed in the year 1945, and it is clear that no action was taken by the appellants in connection with the respondent’s activities on the land from the time he commenced building until May, 1949, when the Civil Summons in this case was taken out.
Shortly put, the appellants’ case was that the respondent knew of the defect in his title and built upon the land notwithstanding such knowledge.
The respondent’s case was that he only came to know the defect in his title some years after his buildings had been completed, and that the appellants with full knowledge of their rights and of what he was doing stood by and made no objection or attempt to warn him. In such circumstances his counsel urged that the appellants could not now be heard to complain, they having acquiesced in his actions.
Appellants’ counsel argued, inter alia, that the respondent was bound by the judgment of the Tribunal of the Gbese Division, exhibit “B”, delivered in February, 1937, which finally established the appellants’ title to the land.
The proceedings in that case were not commenced until the year 1936, that is to say after the respondent’s purchase of the land from Fiscian, and in such circumstances he is not estopped as being privy in estate by a judgment obtained in an action against his vendor commenced after the purchase: Mercantile Investment and General Trust Company v. River Plate Trust, Loan, and Agency Company (1).
The respondent’s case was founded on the equitable doctrine of acquiescence which is summed up by Fry, J., in Willmott v. Barber (2), (15 Ch. D. at p. 105) where he says:-
“… It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What then are the elements or requisit.es necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal rights. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but in my judgment nothing short of this will do.”
In my view the learned Land Court Judge was right in holding that those elements exist in this case, and I am, therefore, of the opinion that his decision ought to be upheld. I would accordingly dismiss this appeal with costs fixed at £25 2s. 0d.
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COUSSEY, J.A.
I concur.
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SMITH, C.J., SIERRA LEONE.
I concur.
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Appeal dismissed.
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