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KWASI AGYAKO
V.
NAZIR ZOK AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF NOVEMBER, 1944
2PLR/1944/71 (WACA)
OTHER CITATION(S)
2PLR/1944/71 (WACA)
(1944) X WACA PP. 277 – 282
LEX (1944) – X WACA PP. 277 – 282
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
COUSSEY, J.
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BETWEEN:
KWASI AGYAKO FORMERLY F. K. AGYAKO – Plaintiff-Appellant
AND
1. NAZIR ZOK
2. MOHAMED HAMIDI
3. LATIF MADJOUB
4. NANA YAW DABANKA, TAFOHENE OF KUMASI – Defendants-Respondents
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REPRESENTATION
E. O. Asafu-Adjaye — for Appellant
H. A. Hayfron-Benjamin — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Lease of land without overlord’s consent –Claim for recovery of possession – Damages – Injunction – Pleadings – Estoppel
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CASES SUMMARY
Fourth Defendant-Respondent leased the land to the Plaintiff-Appellant. The overlord’s consent was not obtained. The terms of the lease included the payment of “homage fee”. Plaintiff-Appellant defaulted and Defendant-Respondent re-entered. Ultimately 4th Defendant-Respondent leased the land to 1st and 3rd Defendants-Respondents, where upon the Plaintiff-Appellant brought this action.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. Trial Judge should have exercised discretion and ordered pleadings.
2. Defendants-Respondents should have denied liability and disclosed defence-estoppel should be pleaded, but if obvious should succeed although not pleaded.
3. Kumasi Native Customary Law precludes leases without consent of overlord.
Appeal allowed.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:
The Plaintiff-Appellant caused to issue out of the Divisional Court at Kumasi a writ addressed to four persons, namely 1. Nazir Zok, 2. Samih Madjoub, 3. Mohamed Hamidi and 4. Latif Madjoub in the following terms:-
‘The Plaintiff’s claim is-
”(1) to recover possession of ”All that piece or parcel of land situate lying and being at Kumasi in the vicinity of the Wesley College and bounded and measuring as follows: that is to say on the North by the Government Cemetery I50 yards more or less on the South by an Estate formerly the property of Messrs. Elder Dempster and Company Limited and now in the possession of the Methodist Missionary Society l50 yards more or less on the East by the Kumasi-Tumale Motor Road 150 yards more or less and on the West by the Kumasi Water Supply Reservoir 150 yards more or less” on a portion of which the Defendants have caused buildings to be erected without Plaintiff’s knowledge and consent.
“(2) damages for use and occupation by the Defendants of that portion on which they have caused buildings to be erected, and
“(3) for an Injunction to restrain the defendants their servants or “agents from anyway dealing with the said land or continuing” possession thereof.”
Of these four persons, Nos 1, 3 and 4 were served and duly defended the action, but No. 2. Samih Madjoub, being absent from the Gold Coast, could not be served and took no part in the action, which proceeded in his absence.
In this Judgment Nazir Zok, Mohamed Hamidi and Latif Madjoub are referred to as the first three Defendants-Respondents.
Since Samih Madjoub is one of the persons alleged to be in possession of part of the land in dispute of which the Plaintiff-Appellant claims recovery of possession, the absence of Samih Madjoub from the proceedings is most unfortunate from the Plaintiff-Appellant’s point of view since any judgment which he might have obtained in the Court below or may obtain in this Court cannot operate against Sarnih Madjoub.
At the end of the first day’s hearing, after the Plaintiff had given his evidence in chief and been cross-examined and partly re-examined, Nana Yaw Dabanka, Tafohene of Kumasi, was brought into the suit as a 4th Defendant. (In the Court below he is referred to as 5th Defendant but in this Judgment will be referred to as 4th Defendant-Respondent.) It would have been far more satisfactory if he had been made a Co-Defendant at the outset.
But these were not the only unsatisfactory features of the trial. It proceeded, as provided by Order 25 rule 1 of the Rules of Court, without pleadings, but in our view the suit was clearly one in which the learned trial Judge should have exercised the discretion vested in him by the rule and ordered pleadings. However since there were no pleadings it was most important that the provisions of Order 35 rule 12 should be observed. The rule reads:
“In cases where written pleadings have not been filed, or the parties or either of them is incapable of understanding their effect with sufficient accuracy, the preceding rules respecting the order of proceeding at the hearing shall be varied by the Court so far as may be necessary. In particular, the statement of the defendant in defence where he does not admit the whole cause of action, shall be heard immediately after the plaintiff has concluded the statement of his claim and of the grounds thereof, and before any witnesses are examined, unless in any case the Court shall see reason to direct otherwise.”
Instead of the proceedings at the trial following this rule, the Plaintiff gave his evidence immediately after a comprehensive opening by his Counsel; and after the evidence of Plaintiff and his witnesses, the evidence for the Defence was heard before there was any suggestion on the record of any submissions by Counsel for the Defendants. Nowhere does it specifically appear even that the Defendants denied liability, far less is the nature of their defence (if any) disclosed, save so far as it may be gathered by the cross-examination and evidence. Even when it comes to the final addresses all that is recorded in regard to the Defendants’ cases is “Mr. Benjamin addresses Court.” This Court is left entirely in the dark as to the nature of the address or as to what pleas Mr. Benjamin may have set up on behalf of the respective Defendants. The absence of pleadings, or, failing written pleadings, the absence of any verbal plea by Defendants’ Counsel in answer to the opening by Plaintiff’s Counsel was most unfortunate.
The facts of the case are that in 1934 the 4th Defendant-Respondent, as Tafohene, and five of his councillors leased the land in dispute for a term of 50 years to the Plaintiff-Appellant. The land is situated in the Kumasi Division and according to custom the Kumasihene should be a consenting or confirming party to the lease. He did not consent to or confirm this lease to the Plaintiff-Appellant but there is no reason to suppose that he would not have done so if he had been so requested, for there is no apparent reason why he should have refused.
By the terms of the lease the Plaintiff-Appellant was to pay an annual “homage fee” of £4 on the 1st of September in each year. It was also a term that the ,grantor could re-enter on the land if the annual homage fee be unpaid for three months, but that in the event of re-entry the Plaintiff-Appellant was to be entitled to resume occupation of the land on payment of the homage fee due.
The Plaintiff-Appellant went into possession and the “homage fees” for 1935, 1936 and 1937 were paid and received. But that for 1938 was, according to Plaintiff-Appellant, refused for inadequate reason although four times tendered. It was proved that the fee was sent to the 4th Defendant-Respondent by registered post in November, 1938 but that in spite of three reminders from the postal authorities the 4th Defendant-Respondent did not collect the letter.
On 27th March, 1939 the 4th Defendant-Respondent informed the Plaintiff-Appellant that he had re-entered the land owing to Plaintiff-Appellant’s neglect to pay the homage fee. The Plaintiff-Appellant refused to accept this position and warned the 4th Defendant-Respondent against meddling with the land.
On the 15th October, 1942 the 4th Defendant-Respondent with the consent of the Kumasihene (who had by then become Asantehene) leased the land to the 1st and 3rd Defendants-Respondents (not, as the learned trial Judge incorrectly states in his judgment to the 1st and 2nd Defendants). In pursuance of this lease the 1st and 3rd Defendants-Respondents entered upon the land and each built a house upon it, they also gave a portion of the land to Samih Madjoub and the 2nd Defendant-Respondent, Mohamed Hamidi, and these two persons also built a house on the land, making a total of three houses altogether, each of which is said to have cost £1,500.
The 3rd Defendant-Respondent swore that they knew nothing about the Plaintiff-Appellant or his claim, and that if they had they would not have touched the land. The learned trial Judge dismissed the Plaintiff’s claim giving only one ratio decidendi as follows:-
“Anyhow, in an action of this sort the onus is on the plaintiff to prove title. I am satisfied from the evidence of the Secretary of the Kumasi Divisional Council, whom I believe, that according to native customary law, the Tafohene of Kumasi had no right to lease any land to anyone without the knowledge, consent or confirm ation of his Paramount Chief, i.e. the Kumasihene (now also recognized as the Asan tehene).
“I find, therefore, that the plaintiff’s lease on which his claim is based is not a valid lease and his action must therefore fail.”
It is now that the absence of pleadings is seen to be so unfortunate, because had this point upon which the case was decided been raised by pleading the Plaintiff-Appellant would have had a complete answer to it by pleading estoppel.
It is clear that the 4th Defendant-Respondent, who executed the lease and put the Plaintiff-Appellant into possession and received at least three years’ homage fees, must be estopped from now setting up a plea that the lease is invalid since he himself executed it improperly, and it is equally clear that the first three Defendants-Respondents, who derive title from the 4th Defendant-Respondent are also estopped. (13 Halsbury (2nd Ed.) para. 572 p. 605).
It is of course, a rule of pleading that estoppel must be specifically pleaded. In this case there are no pleadings and consequently no plea of estoppel, but we are of opinion that in the circumstances that should not prevent the Plaintiff-Appellant from succeeding upon what is such an obvious answer to the point decided against him in the Court below. But that, in our view, is not the only reason why he should succeed, for we disagree with the learned trial Judge’s finding that the Plaintiff’s lease is not a valid lease. It is true that the Secretary of the Kumasi Divisional Council said:-
“According to native custom the Tafohene cannot grant lease of any land to anyone without the consent of the Kumasihene. I see this lease Exhibit ‘1’. It is a lease made between the Tafohene and the Plaintiff. It was made in 1934. The Asantehene’s name is not in this lease. The Asantehene was recognized as such in 1935, but his name should have appeared on Exhibit ‘I’ as Kumasihene. This lease is definitely not valid according to native custom.”
And the 4th Defendant-Respondent said “if a sub-chief grants a lease of land without the consent of the Paramount Chief then that lease is not valid”; but these men could not be expected to appreciate any difference between a lease being void or merely voidable. In this connection the evidence of the Registrar of the Asantehene’s Divisional Court is material. He said “A lease for 50 years of any land within the Kumasi Division must be confirmed by the Kumasihene otherwise it is invalid.”
We think that there can be no doubt that a lease made without the consent of the Kumasihene is not void abinitio but is voidable at the instance of the Kumasihene (not at the instance of the lessor).
We, therefore, hold that the original lease dated 19th September, 1934 from the 4th Defendant-Respondent to the Plaintiff-Appellant, not having been voided, still subsists and prima facie entitles the Plaintiff-Appellant to possession of the land in dispute.
It remains to consider whether the possible defence that the 4th Defendant-Respondent had lawfully re-entered upon the land owing to non-payment of homage fee could succeed. If it were not that the rights of the parties could be clearly ascertained from the documents in evidence we should have to send the case back to the lower Court to determine this point. But, apart from the Plaintiff-Appellant’s own sworn evidence, we think that the documents prove beyond doubt that the homage fee due on the 1st September, 1938 was duly tendered by the Plaintiff-Appellant and was refused by the 4th Defendant-Respondent without good cause, and that the act of the 4th Defendant-Respondent in re-entering in March, 1939 was unlawful and did not put him into the position of being able to make a fresh valid grant in derogation of the Plaintiff-Appellant’s rights. That the Plaintiff-Appellant never acquiesced in the position is clear from his letters. On the 30th March, 1939 he wrote in Exhibit 5a:
I must state in conclusion that our agreement still holds good and “any attempt on your part to lease a part of my plot to anyone will lead to serious troubles.”
And on the 28th April, 1939 he wrote (Exhibit 6a):-
“I acknowledge with thanks the receipt of your letter dated the 20th inst. From this I learn that you have re-entered and taken possession of the plot leased to me in 1934 for fifty years on the ground that I paid in the rent too late. After a careful reading of our agreement I find that you have no grounds, legally speaking, for the attitude you have taken. I advise you, therefore, to withdraw the letter. Should you, however, decide to ignore this advice, then I must warn you in the most emphatic terms not to meddle with my plot; for if you did the legality of your action will be subjected to a severe test in the Court of Law.”
These letters of the Plaintiff-Appellant make his attitude so plain, namely that he had no intention whatever of abandoning his claim to the land, that we feel compelled to disagree with the learned trial Judge when he says,
“According to the evidence the Plaintiff had, for all practical purposes, abandoned this land.”
We think it makes no difference to the Plaintiff-Appellant’s rights that, until shortly before action brought, there had been no actual tender of the homage fees due in 1939, 1940, 1941 and 1942. The fee for 1938 had been refused when tendered and the Plaintiff-Appellant had been deprived of possession on the specious excuse that it had not been paid. The Plaintiff-Appellant is in our view entitled to recover the possession of which he had been deprived before there was any homage fee due and untendered.
As to the claim for damages, Counsel for Plaintiff-Appellant has intimated in this Court that he will not press this claim, but will be content to have his right to possession and undisturbed enjoyment of his occupation restored to him. We accordingly make no order upon the claim for damages.
The Plaintiff-Appellant is entitled to the injunction which he seeks, but we think that in equity the first three Defendants-Respondents should be allowed a reasonable opportunity to remove whatever they have put upon the land.
The appeal is allowed, the judgment of the Court below including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded; it is ordered that judgment be entered for the Plaintiff-Appellant granting him recovery of possession of the piece or pared of land described in his claim and an injunction restraining the Defendants-Respondents their servants or agents from in any way dealing with the said land or continuing in possession thereof, save that the first three Defendants-Respondents shall have the right at any time within four months from the date of this judgment to enter upon the said land by themselves and/or servants and/or their agents and to remove therefrom whatever they may have put upon the said land provided that in so doing they do no greater damage to the said land than is reasonably necessary for the said purpose.
The Plaintiff-Appellant is awarded costs in this Court assessed at £41 3s. 9d. and in the Court below to be taxed.
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