ODAMETEY v.

CLOCUH AND ANOTHER

[1989-90] 1 GLR 14

Division: SUPREME COURT, ACCRA

Date: 8 MARCH 1989
Before: ADADE, TAYLOR, FRANCOIS, WUAKU AND
AMUA-SAKYI JJ.S.C.

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).

HEADNOTES
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

[p.15] of [1989-90] 1 GLR 14

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

[p.16] of [1989-90] 1 GLR 14

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

[p.17] of [1989-90] 1 GLR 14

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.
[p.18] of [1989-90] 1 GLR 14

(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.
(14) 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. Hahormene III [1987-88] 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.

NATURE OF PROCEEDINGS
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.

COUNSEL
W. A. N. Adumua-Bossman for the appellant.
E. D. Kom, S.A.G. (with him George Kom) for the respondents.

JUDGMENT OF 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

[p.19] of [1989-90] 1 GLR 14

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

[p.20] of [1989-90] 1 GLR 14

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

[p.21] of [1989-90] 1 GLR 14

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

[p.22] of [1989-90] 1 GLR 14

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-

[p.23] of [1989-90] 1 GLR 14

 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.

[p.24] of [1989-90] 1 GLR 14

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

[p.25] of [1989-90] 1 GLR 14

(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 1976 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

[p.26] of [1989-90] 1 GLR 14

setting aside the judgment of the circuit court and decreeing judgment in favour of the 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

[p.27] of [1989-90] 1 GLR 14

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:

[p.28] of [1989-90] 1 GLR 14

“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:

[p.29] of [1989-90] 1 GLR 14

“ . . .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.

[p.30] of [1989-90] 1 GLR 14

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

[p.31] of [1989-90] 1 GLR 14

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

[p.32] of [1989-90] 1 GLR 14

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

[p.33] of [1989-90] 1 GLR 14

v. 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

[p.34] of [1989-90] 1 GLR 14

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

[p.35] of [1989-90] 1 GLR 14

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

[p.36] of [1989-90] 1 GLR 14

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

[p.37] of [1989-90] 1 GLR 14

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

[p.38] of [1989-90] 1 GLR 14

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

[p.39] of [1989-90] 1 GLR 14

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.”

[p.40] of [1989-90] 1 GLR 14

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.

[p.41] of [1989-90] 1 GLR 14

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.

[p.42] of [1989-90] 1 GLR 14

JUDGMENT OF ADADE J.S.C.

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

JUDGMENT OF FRANCOIS J.S.C.

I agree with the judgment delivered.

JUDGMENT OF 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.

JUDGMENT OF AMUA-SEKYI
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.

[p.43] of [1989-90] 1 GLR 14

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

[p.44] of [1989-90] 1 GLR 14

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

[p.45] of [1989-90] 1 GLR 14

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.

DECISION
Appeal dismissed.
L.K.A.