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Acquiescence in English Law and the Customary Land Law of Ghana and Nigeria

Published online by Cambridge University Press:  28 July 2009

Extract

The courts in Ghana and Nigeria apply indigenous customary law in a large proportion of cases, particularly those involving family relationships or land. During the past century the courts have done much to clarify this law and adapt it to rapidly changing social conditions. One such adaptation is the subject of this article. The English doctrine of acquiescence has been imported to fill what appeared in new circumstances to be a deficiency in the customary land law. The doctrine had been used to perform functions different from those which it has performed and is performing in English land law. This article seeks to compare the different characteristics the doctrine has assumed in the three countries, and to draw some conclusions from the experience of Ghana and Nigeria.

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Articles
Copyright
Copyright © School of Oriental and African Studies 1971

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References

2 While there exist many systems of customary law in Ghana and Nigeria, the courts normally assume that they have certain common principles, including those relevant here. “Customary law” will therefore be referred to in the singular.

3 For the period up to the middle of the nineteenth century, see , Holdsworth, A History of English Law, 3rd Edn., 1944, Vol. IX, pp. 159162.Google Scholar

4 Hunt v.Carew (1649), 21 E.R. 786. See also The Earl of Oxford's Case (1615), 21 E.R.485; Dyer v. Dyer (1682), 22 E.R. 869; Hobbs v. Norton (1682), 23 E.R. 370; Hunsden v. Cheyney (1690), 23 E.R. 703.

5 Savage v. Foster (1722), 88 E.R. 299.

page 42 note 1 Pickard v. Sears (1837), 112 E.R. 179.

page 42 note 2 Cf. Bower, G. Spencer, The law relating to Estoppel by Representation, 2nd ed., by , Turner, London, 1966, hereafter referred to as “Bower”, 9–10, 279–282, arguing that the doctrine is never a cause of action even in equity. The view stated in the text is argued by Sheridan, “Equitable estoppel today”, (1952), 15 M.L.R. 325; Jackson, “Estoppel as a sword”, (1965) 81 L.Q.R. 84, 223.Google Scholar

page 42 note 3 The earliest clear cases seem to be Rochdale Canal Co. v. King (1853), 51 E.R. 924; and Duke of Beaufort v. Patrick (1853), 51 E.R. 954. The development had been foreshadowed in Gregory v. Mighell (1811), 34 E.R. 341. But cf. Wilson, “Recent developments in estoppel”, (1951) 67 L.Q.R. 330, at p. 334, stating that the earliest case was Hughes v. Metropolitan Railway Co. (1877), 2 App. Cas. 439. For further discussion, see especially Sheridan, op. cit.; Cheshire, “A new equitable interest in land”, (1953) 16 M.L.R. 1; Maudsley, “Licence to remain on land”, (1956) 20 Conveyancer (N.S.) 281; Jackson, op. cit.; Bower, Chap. XIV.

page 42 note 4 See, e.g., the dicta cited by Bower, 15.

page 42 note 5 See, e.g., Ramsden v. Dyson (1866), 1 H.L. 129, at pp. 140–141, per LordCranworth, L.C. LordKingsdown (dissenting), at pp. 170–171, appears to have been referring to promissory estoppel. However it is not suggested that the difference in formulation accounts for the divergence of opinion on the decision. This resulted from different views as to inferences of fact.

page 43 note 1 Thus the principle stated in Willmott v. Barber (1880), 15 Ch. D. 96, seems to be merely an instance of that in the common-law case Pickard v. Sears (1837), 112 E.R. 179.

page 43 note 2 E.g., Rochdale Canal Co. v. King (1853), 51 E.R. 924.

page 43 note 3 E.g., Duke of Beaufort v. Patrick (1853), 51 E.R. 954. “Acquiescence” is used by Brunyate, J., Limitation of Actions in Equity, London, 1932, to include all cases where conduct or inaction causes a man to forfeit his rights: op. cit., 192. This is a wider meaning, which will not be used here.Google Scholar

page 43 note 4 Leeds v. Amherst (1846), 41 E.R. 886, at p. 888; Ramsden v. Dyson (1866), 1 H.L. 129; Willmott v. Barber, supra.

page 43 note 5 Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221; Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218.

page 44 note 1 There appears to have been no significant public discussion of the question in either country at the time the courts first acted. In 1927 a Civil Proceedings Limitation Bill applicable to customary law was introduced into the Gold Coast Legislative Council by the government, but debate was postponed for further public discussion, and it was not reintroduced: Gold Coast Legislative Council Debates, 1927–8, 333–336, 342. In public discussions it was objected that the Bill was contrary to customary ideas, and would be abused: Meek, C., Land Law and Custom in the Colonies, London, 1949, 25.Google ScholarCf. Maine, H., Ancient Law, London, 1st edn., 1861, chap. VIII, saying that English law did not accept limitation and prescription until the seventeenth century, the influence of canon law being against them.Google Scholar

page 44 note 2 Russell v. Martin (1900), Ren. 193.

page 44 note 3 Bokitsi Concession Enquiry (1903), Ren. 242; Sar. F.L.R. 148.

page 44 note 4 Lewis v. Bankole (1909), 1 N.L.R. 86; Awo v. Gam (1913), 2 N.L.R. 100.

page 44 note 5 The legal basis for this modification of customary law by a common law doctrine is controversial. See Bennion, F., The Constitutional Law of Ghana, London, 1962, 446;Google ScholarDaniels, W., The Common Law in West Africa, London, 1964, 280281;Google ScholarKasunmu, A. and James, R., Alienation of Family Property in Southern Nigeria, 1966, 6770; Awo v. Gam, supra; Fiscian v. Nelson (1946), 12 W.A.C.A. 21.Google Scholar

page 45 note 1 See, e.g., Thompson v. Mensah (1957), 3 W.A.L.R. 240. The Nigerian courts have in several recent cases emphasised the distinction: Chairman, Lagos Executive Board v. Sunmonu, [1961] L.L.R. 20; Nwakobi v. Nzekwu, [1961] All N.L.R. 445, and, on appeal, [1964] 1 W.L.R. 1019, at p. 1024; Finn v Ayeni, [1964] N.M.L.R. 130. It is submitted that the line of cases following Bayaidee v. Mensah (1878), Sar. F.C.L. 171; Ren. 45, on the setting aside of voidable conveyances in customary law, are concerned with a purely customary-law doctrine. They will not therefore be discussed here. See Woodman, “A note on voidable grants in customary law”, 3 Law in Society (Journal of the Law Faculty, Ahmadu Bello University, Nigeria, 1967) 59. See, contra, Hannigan, “Equity and the law in Ghana” (1967) 4 U.G.L.J. 28. It is submitted that the line of Nigerian cases following Eyamba v. Holmes (1924), 5 N.L.R. 85, which restricts the customary-law right of a licensor to enforce forfeiture, is also concerned with a different development. These cases do not require proof of a mistaken belief, and the consequence of the doctrine is not estoppel, but a modification of the terms of the licence: see, e.g. Bassey v. Eteta (1938), 4 W.A.C.A. 153.

page 45 note 2 Bell v. Marsh, [1903] 1 Ch. 528.

page 45 note 3 Bower, 267–270.

page 45 note 4 Ghana: Adai v. Zacca (1938), D.G. (Land) ’38–’47, 7; Kofi v. Twum (1942), 8 W.A.C.A. 165; Khoury v. Addo (1949), D.C. (Land) ’48–’51, 158; Golightly v. Vanderpuye, [1961] G.L.R. 716; Boateng v. Adjei, [1963] 1 G.L.R. 285. Nigeria: Oloto v. Dawuda, 1 N.L.R. 57; Olowu v. Desalu (1955), 14 W.A.C.A. 662; Nwakobi v. Nzekwu, [1961] All N.L.R. 445. Cf. Kasunmu & James, op. cit., 59, stating that dicta in Suleman v. Johnson (1951), 13 W.A.C.A. 213, and Epelle v. Ojo (1926), 7 N.L.R. 96, imply that a mistaken belief is unnecessary. The dicta emphasise that, if the party pleading estoppel is a licensee of the other party, he must establish acts adverse to his licensor's title: this point will be discussed later. They do not hold such acts alone to be sufficient to constitute estoppel. It is also suggested by Kasunmu & James, op. cit., 57–61, and by Hannigan, op. cit., 32–33, that the mistaken belief must be that one has a right of ownership. It is submitted that neither principle nor authority restricts the doctrine thus. A belief that one is owner is certainly the belief which has most frequently been alleged in Ghanaian and Nigerian cases. But it should be possible to base a plea of acquiescence on a mistaken belief that one has a lesser right. As will be seen below, a number of cases have held that the acquiescing parties were estopped from claiming possession but not from claiming title. This indicates that the mistaken belief was of a right to possession amounting to a customary-law licence. There are many English cases in which the mistaken belief concerned an interest other than the fee simple.

page 45 note 5 Ado v. Wusu (1938), 4 W.A.C.A. 96; (1940), 6 W.A.C.A. 24.

page 46 note 1 It is suggested by Hannigan, op. cit., 33–35, that a customary-law licensee cannot mistakenly believe himself to be owner. See similarly Kom, “Limitation of action to recover land”, (1968) 5 U.G.L.J. 13, especially at p. 72. It is submitted that such a mistake can arise if the licence has continued for more than a generation, without the performance of duties by the licensee. As Hannigan states, Aradzie v. Adiankah (1923), F.Ct. ’23–’25, 52, is against his view; moreover, in Ado v. Wusu, supra, the court held it possible for a licensee to plead acquiescence, although it rejected the plea on the evidence. See also Ebiassah v. Ababio (1946), 12 W.A.C.A. 106, at p. 107. Customary-law licences are examined in the text below, at p. 49, nn. 4–5.

page 46 note 2 Ollennu, N. A., Principles of Customary Land Law in Ghana, London, 1962, 68, 102.Google Scholar

page 46 note 3 Ollennu, op. cit., chap. 7; Bentsi-Enchill, K., Ghana Land Law, London, 1964, 372391; Woodman, “Developments in pledges of land in Ghanaian customary law”, [1967] J.A.L. 8.Google Scholar

page 46 note 4 Abeka v. Duker (1927), F.Ct. ’26–’29, 264; Kumah v. Addai, Ghana Court of Appeal Written Judgments, Jan.-June 1958 (Civil) 114; Dotse v. Komla (1965), C.C. 148 (criticising the rule). See also Nkoom v. Etsiaku (1922), F.Ct. ’22, 3; Ebiassah v. Ababio (1946), 12 W.A.C.A. 106; Dabla v. Ativor (1949), D.C. (Land) ’48–’51, 103, Ollennu, op. cit., 170, upheld in an unreported judgment of the West African Court of Appeal, delivered on February 7th, 1951; Kom, op. cit., 54–56. The question has not yet arisen in Nigeria.

page 46 note 5 Sarbah, J., Fanti Customary Laws, 2nd ed., London, 1904. At p. 70 he stated: “Custom does not permit any person to be improved out of his land”. Here he was concerned with improvements by a licensee, not a pledgee, and the maxim is in any case not without exceptions in modern law, as will appear below. At p. 84 he wrote: “Once a pledge or mortgage, always a pledge or mortgage”. Here, however, he was concerned with the pledgee's power of sale, and was stating that on the exercise of the power the pledgee must pay to the pledgor the balance of the price after satisfying the debt. The common-law maxim is concerned with clogs placed on the equity of redemption by a mortgage agreement. English law allows a mortgagor to release his equity of redemption to the mortgagee, and would therefore, it is submitted, hold that he loses it by acquiescence.Google Scholar

page 46 note 6 Clarke v. Nkrumah (1948), D.C. (Land) ’48–’51, 99.

page 46 note 7 Williams v. Colonial Bank (1888), 38 Ch.D. 388, at pp. 401, 407, 409. This seems also to be the basis of cases rejecting pleas of acquiescence against cestuis que trust when purchasers had acted on the mistaken belief that the legal titles were not subject to trusts; see, e.g., Shropshire Union Railways & Canal Co. v. The Queen (1875), L.R. 7 H.L. 496; cf. Rimmer v. Webster, [1902] 2 Ch. 163, where this belief was reasonable.

page 46 note 8 Bower, 126–127. See also Willmott v. Barber (1880), 15 Ch.D. 96 at pp. 101, 106.

page 46 note 9 Ghana: Adai v. Zacca (1938), D.C. (Land) ’38–’47, 7; Yaatel v. Gannam (1945), D.C. (Land) ’38–’47, 148; Atene Stool v. David (1949), D.C. (Land) ’48–’51, 180; Amoako v. Lagos, [1962] 1 G.L.R. 317. Nigeria: Eriktola v. Ali (1941), 16 N.L.R. 56; Morayo v. Okiade (1942), 8 W.A.C.A. 46 (express ruling).

page 47 note 1 Bower, 125–126.

page 47 note 2 Bentsi-Enchill, op. cit., 41–42, 49–50. These persons can appoint an agent to act for the family, as was done in Busby v. Acquah (1954), 14 W.A.C.A. 574.

page 47 note 3 Bower, 36–40, discussing express representations. But cf. Jackson, op. cit., 224–226.

page 47 note 4 Djoma v. Amargyei, [1961] G.L.R. 170.

page 47 note 5 Ado v. Wusu (1940), 6 W.A.C.A. 24; Boateng v. Adjei, [1963] 1 G.L.R. 285, at p. 301. It may be questioned whether this view is tenable in matters where customary law has undergone extensive judicial development.

page 47 note 6 Bower, 45–66.

page 47 note 7 These are the last three of the five conditions listed in Willmott v. Barber (1880), 15 Ch.D. 96, at pp. 105–106.

page 47 note 8 Cf. Hopgood v. Brown, [1955] 1 W.L.R. 213, at pp. 223–224, per Evershed, M.R. This seems to be a departure from the rule, although the decision might be explained by the fact that the estopped party adverted his mind to the possibility of a mistake, and decided not to ascertain or insist on his rights. Jenkins and Morris, L.JJ., appear to have regarded the case as one of promissory estoppel, as is shown by their references to passages from the judgment of Campbell, L.C., in Cairncross v. Lorimer (1860), 3 L.T. 130. It is submitted that the latter view is a more realistic interpretation of the parties' conduct.

page 47 note 9 It is suggested by Hannigan, op. cit., 35, that the present requirement was not insisted upon in Ghana until 1956. However, the earlier cases did not expressly hold that any aspect of the present requirement was unnecessary, nor do the later cases suggest any conscious change in the law. It is submitted that the principle has not changed, and that the courts merely had no occasion to emphasise the present requirement in the earlier cases.

page 47 note 10 Savage v. Foster (1722), 88 E.R. 299; Ramsden v. Dyson (1866), L.R. 1 H.L. 129, at p. 141, per LordCranworth, L.C.; Willmott v. Barber (1880), 15 Ch.D. 96, at p. 105.

page 48 note 1 It was relevant in Oshodi v. Imoru (1936), 3 W.A.C.A. 93, at p. 96.

page 48 note 2 Kwadjoe v. Cudjoe (1930), D.Ct. ’29–’31, 25.

page 48 note 3 Ogundimu v. Adeoshun, [1964] L.L.R. 233.

page 48 note 4 See Ellis v. Rogers (1885), 29 Ch.D. 661, holding in effect that constructive notice of facts was insufficient to establish waiver, which required intention as well as notice. An intention to encourage the mistaken belief may be presumed when this is the probable result, as stated below. But it has never been suggested that this presumption may be based on merely constructive knowledge of the circumstances.

page 48 note 5 Ex parte Ford; in re Caughey (1876), 1 Ch.D. 521, at p. 528; Willmott v. Barber (1880), 15 Ch.D. 96, at p. 105.

page 48 note 6 Ghana: Appiah v. Dansoa (1954), D.C. (Land) ’52–’55, 246; Tetteh v. Annang, unreported judgment of Ollennu, J., in the Land Court, Accra, delivered on December 11th, 1957; Tamakloe v. Nunoo, [1960] G.L.R. 115. Nigeria: Oshodi v. Imoru (1936), 3 W.A.C.A. 93; Dania v. Soyenu (1937), 13 N.L.R. 143; Ike v. Oduma (unreported), cited Kasunmu & James, op. cit., 63.

page 48 note 7 Ramsden v. Dyson (1866), L.R. 1 H.L. 129; Attorney-General to the Prince of Wales v. Collom, [1916] 2 K.B. 193. This rule was applied in Boateng v. Ntim, Ghana Supreme Court Written Judgments, Jan.-June 1963 (Civil) 937, at p. 421.

page 48 note 8 Bassey v. Eteta (1938), 4 W.A.C.A. 153 (on the similar principle of waiver, holding that a family was not bound by the act of its head in accepting payment to waive a right of action); Bruku v. Ocansey, unreported judgment of the West African Court of Appeal, delivered on March 23rd, 1953 (holding that a family was not bound if neither the head nor his agent had been guilty of encouraging the mistaken belief); Ohimen v. Adjei (1957), 2 W.A.L.R. 275, at pp. 280–281 (also on waiver); Kasunmu & James, op. cit., 63. In Appiah v. Dansoa (1954), D.C. (Land) ’52–’55, 246, it was implied that a family might have been bound if the head had known, the court considering that the head acting alone could alienate family property for his lifetime. Allott, A., Essays in African Law, London, 1960, 304305, states that knowledge of one member is imputed to the whole family after a lapse of time, but the two cases he cites do not seem helpful on the point.Google Scholar

page 49 note 1 The point was mentioned in: Oshodi v. Balogun (1936), 4 W.A.C.A. 1; [1936] 2 All E.R. 1632; Suleman v. Johnson (1951), 13 W.A.C.A. 213. In Oshodi v. Oloje, [1958] L.L.R. 1, the court held that long, open, adverse possession was necessary; presumably it had to be “open” to ensure that the other party knew of it. In many other cases where there had been long adverse possession it had been assumed without question that the owner must have known: see the cases cited below, p. 50, nn. 1–2.

page 49 note 2 Cave v. Mills (1862), 158 E.R. 740; Willmott v. Barber (1880), 15 Ch.D. 96, at p. 105–106.

page 49 note 3 Bower, 89–90.

page 49 note 4 See, e.g., Savage v. Foster (1723), 88 E.R. 299; Berrisford v. Milward (1740), 26 E.R. 427; Illingworth v. Manchester & Leeds Railway Co. (1840), 2 Ry & Can. Cas. 187; Stronge v. Hawkes (1853), 43 E.R. 478.

page 49 note 5 Kuma v, Kuma (1938), 5 W.A.C.A. 4; Payin II v. Anquandah (1947), 12 W.A.C.A. 284. The terms are subject to negotiation in each case. The licensee may, for example, be restricted in the uses to which he may put the land, and he may not be entitled to alienate his interest. See further: Ollennu, op. cit., 64–66, 90–93; Woodman,”The scheme of subordinate tenures of land in Ghana”, (1966–7) 15 Am. J. Comp. L. 457, at pp. 464–469.

page 50 note 1 The courts have not often set out the argument in full, but it seems to be implied in the following cases, which all suggest that a licensee must prove acts adverse to the owner's title before he can plead acquiescence. Ghana: Ado v. Wusu (1940), 6 W.A.C.A. 24; Apapam Stool v. Attaa (1956), 1 W.A.L.R. 117, at pp. 120–121; Lawer v. Kwami (1958), 3 W.A.L.R. 473, at pp. 475; Lartey v. Hausa, [1961] G.L.R. 773, at p. 775. Nigeria: Lewis v. Bankole (1909), 1 N.L.R. 86; Bassey v. Cobham (1924), 5 N.L.R. 92; Epelle v. Ojo (1926), 7 N.L.R. 96; Gamba v. Public Trustee (1947), 18 N.L.R. 132; Suleman v. Johnson (1951), 13 W.A.C.A. 213; Rihawi v. Aromashodun (1952), 14 W.A.C.A. 204; Oshodi v. Oloje, [1958] L.L.R. 1.

page 50 note 2 Nkoom v. Etsiaku (1922), F.Ct. ‘22, 3; Payin II v. Anquandah, supra; Apapam Stool v. Attaa (1956), 1 W.A.L.R. 117; Baidoo v. Osei (1957), 3 W.A.L.R. 289; Lawer v. Kwami, supra; Nkum v. Andoh, [1959] G.L.R. 358; Boateng v. Ntim, Ghana Supreme Court Written Judgments, Jan.-June 1963 (Civil) 397. See also Ollennu, op. cit., 67.

page 50 note 3 Adai v. Zacca (1938), D.C. (Land) ’38–’47, 7. The owner was a family, and the vendor a member of that family. See Kom, supra, p. 46, n. 1, containing an exhaustive discussion of the circumstances in which possession may be adverse. However, it is difficult to agree with the author's assertions (especially at pp. 68–72) that adverse possession is essential in English law to a plea of acquiescence: cf. the cases cited at p. 49, n. 4, supra.

page 50 note 4 Oshodi v. Balogun (1936), 4 W.A.C.A. 1. See also Boateng v. Adjei, [1963] 1 G.L.R. 285, at pp. 301–302.

page 50 note 5 Ghana: Bobo v. Anthony (1931), 1 W.A.C.A. 169; Edmund v. Ferguson (1939), 5 W.A.C.A. 113; Fiscian v. Nelson (1946), 12 W.A.C.A. 21; Baidoo v. Osei (1957), 3 W.A.L.R. 289; Tetteh v. Annang, unreported judgment of Ollennu, J., in the Land Court, Accra, delivered on November 11th, 1957; Boateng v. Ntim, Ghana Supreme Court Written Judgments, Jan.-June 1963 (Civil) 397; also Ollennu, op. cit., 67. Nigeria: Oshodi v. Balogun, supra; Suleman V. Johnson (1951), 13 W.A.C.A. 213; Oshodi v. Oloje, [1958] L.L.R. 1.

page 50 note 6 Ghana: Akesse v. Ababio (1935), 2 W.A.C.A. 264 (where the claimant chief had forbidden his subjects to enter the land to avoid bloodshed); Frempong v. Boatema, unreported judgment of Coussey, J., in the Land Court, Accra, delivered on September 28th, 1950 (where an order for a court hearing was obtained, but not pursued because of the defendant's illness: held, there was no estoppel). Nigeria: Eriktola v. Ali (1941), 16 N.L.R. 56; Olowu v. Desalu (1955), 14 W.A.C.A. 662.

page 51 note 1 See generally Bower, 96–108, 271.

page 51 note 2 See the descriptions of acquiescence in: Leeds v. Amherst (1846), 41 E.R. 886, at p. 888; Ramsden v. Dyson (1866), 1 H.L. 129, at pp. 140–141, per LordCranworth, L.C.

page 51 note 3 Simm v. Anglo-American Telegraph Co. (1879), 5 Q.B.D. 188; Bell v. Marsh, [1903] 1 Ch. 528.

page 51 note 4 Bokitsi Concession Enquiry (1903), Ren. 242; Sar. F.L.R. 148; Nkoom v. Etsiaku (1922), F.Ct. ’22, 3; Kofi v. Twum (1942), 8 W.A.C.A. 165; Boateng v. Adjei, [1963] 1 G.L.R. 285, at p. 302.

page 51 note 5 Taiwo v. Taiwo (1958), 3 F.S.C. 80, at p. 82; Ogundimu v. Adeoshun, [1964] L.L.R. 233, at pp. 236–237. Cases holding that acquiescence as to one portion of land does not bear a claim to a different portion seem to be based on the need for the causal connection: Otun v. Ejide, 11 N.L.R. 124, at p. 128; Oshodi v. Balogun (1936), 4 W.A.C.A. 1, at p. 3.

page 51 note 6 Ita v. Asido (1935), 2 W.A.C.A. 339; Rihawi v. Aromashodun (1952), 14 W.A.C.A. 204, at p. 206. See also Kasunmu & James, op. cit., 61–62. The authors cite three cases: (i) Awo v. Gam (1913), 2 N.L.R. 100, where the party pleading acquiescence had allowed a European factory to be built on the land; presumably they would have suffered detriment in the form of liability to the factory owners if the original owner had been allowed to re-assert his title, (ii) Epelle v. Ojo (1926), 7 N.L.R. 96, where the court held that a licensee must prove acts of ownership to establish acquiescence; this merely supports the view that acts adverse to the true owner's title are essential, not that any acts of ownership are sufficient. (iii) Alade v. Aborishade (1960), 5 F.S.C. 167, which merely holds that non-payment of rent by a licensee is not an act of adverse possession.

page 51 note 7 Greenhalgh v. Manchester & Birmingham Railway Co. (1838), 40 E.R. 1128, at p. 1132; Willmott v. Barber (1880), 15 Ch.D. 96, at p. 105.

page 51 note 8 Fiscian v. Nelson (1946), 12 W.A.C.A. 21, at p. 22; Buor v. Bekoe (1957), 3 W.A.L.R. 26, at p. 30; Thompson v. Mensah (1957), 3 W.A.L.R. 240, at pp. 247–248; Baidoo v. Osei (1957), 3 W.A.L.R. 289, at p. 292; Allotey v. Essien (1958), 3 W.A.L.R. 527, at p. 530; Nettey v. Odjidja, [1959] G.L.R. 261, at p. 268. See also Ollennu, op. cit., 67. But cf. Ado v. Wusu (1938), 4 W.A.C.A. 96, at p. 100 (saying the question was whether the party pleading acquiescence had “spent money in improving [the land] or in defending his rights to it”); Tetteh v. Doku, [1961] G.L.R. 566, at p. 568 (where Ollennu, J., who decided several of the preceding cases, merely said that the acts must be “with regard to” the land); Boateng v. Ntim, [1961] G.L.R. 671, at p. 674 (where there is a similar dictum by Ollennu, J.; the point was not discussed on appeal: Ghana Supreme Court Written Judgments, Jan.-June 1963 (Civil 397). Moreover, Willmott v. Barber has often been cited in Ghana: see, e.g., Abbey v. Ollennu (1954), 14 W.A.C.A. 567.

page 51 note 9 Thompson v. Mensah, supra; Tetteh v. Doku, supra; Ollennu, op. cit.

page 52 note 1 Ogilvie v. West Australian Mortgage & Agency Corp., [1896] A.C. 257, at p. 270; Greenwood v. Martins Bank Ltd., [1932] 1 K.B. 371, at pp. 383–384 per Scrutton, L.J.

page 52 note 2 Bruku v. Ocansey, unreported judgment of the West African Court of Appeal) delivered on March 23rd, 1953 (doubting whether the erection of a small iron shed was sufficient); Tetteh v. Doku, [1961] G.L.R. 566, at p. 568; Lartey v. Hausa, [1961] G.L.R. 773, at pp. 775–776; Boateng v. Hwere, unreported judgment of the Court of Appeal, delivered on December 16th, 1968 (saying that there must be expenditure of “some considerable sum”). The Nigerian cases do not refer to the question.

page 52 note 3 Hopgood v. Brown, [1955] 1 W.L.R. 213; Nwokobi v. Nzekwu, [1964] 1 W.L.R. 1019, at p. 1024. Cf. Maudsley, op. cit., 298, arguing that it would cause great injustice to hold the estoppel binding on the purchaser of a legal estate for value without notice of the estoppel. It is submitted that it would cause equally great injustice to the party relying on estoppel to hold otherwise; and that since, as the writer admits, this type of estoppel is binding at common law, there is no basis for reducing it to the status of an equitable principle.

page 52 note 4 Cuthbertson v. Irving (1859), 157 E.R. 1034, at pp. 1039–1041; (1860), 158 E.R. 56; Rudd v. Bowles, [1912] 2 Ch. 60.

page 52 note 5 Cf. Bower, 15–17, arguing that the doctrine cannot confer a legal title or right against the whole world. It is true that a third party may establish a right which is superior to that of either of the two persons originally concerned in the acquiescence, and which is not barred by estoppel. However, this merely illustrates the principle that rights in land may be relative. If A executes a conveyance of land to B, we say that B acquires title from A, even though it is always possible that an outsider, C, may be able to prove a better title than A or B.

page 52 note 6 E.R. Ives Investment Ltd. v. High, [1967] 2 Q.B. 379.

page 52 note 7 See, e.g., Pickard v. Sears (1837), 112 E.R. 179. Cf. Kasunmu & James, op. cit., 76–77: the cases cited at p. 77, n. 1 do not seem to involve the present doctrine, since in none of them were the three elements of acquiescence present.

page 53 note 1 The distinction was first drawn in Ita v. Asido (1935), 2 W.A.C.A. 339. See also: Oshodi v. Imoru (1936), 3 W.A.C.A. 93; Oshodi v. Balogun (1936), 4 W.A.C.A. 1; Dania v. Soyenu (1937), 13 N.L.R. 143; Suleman v. Johnson (1951), 13 W.A.C.A. 213; Akuru v. Olubadan-in- Council (1954), 14 W.A.C.A. 523.

page 53 note 2 Suleman v. Johnson, supra. Cf. Kasunmu & James, op. cit., 77–81. It is submitted that the authors misinterpret that decision. They say (at pp. 78 and 80) that the appeal court reversed the decision of the trial court, and held that the title of the original owner had not passed to the occupier. The report states that the appeal was dismissed, the appeal court upholding the refusal of a declaration of title, and holding (at p. 216) that the original owners were not entided to rely on customary law “to support their claim to any rights of ownership whatever”.

page 53 note 3 Ollennu, op. cit., 67–68; implied in Gawu III v. Ponuku, [1960] G.L.R. 101, at p. 104. See also: Allott, op. cit., 301–303; Kasunmu & James, op. cit., 74–75.

page 53 note 4 The Nigerian cases distinguishing between acquiescence which passes a licence and acquiescence which passes full title clearly imply that the latter can pass; they are of persuasive authority in Ghana, and were expressly approved in Boateng v. Ntim, Ghana Supreme Court Written Judgments, Jan.-June 1963 (Civil) 397. In Ado v. Wusu (1940), 6 W.A.C.A. 24, the court considered on the evidence that title had not been lost, but clearly considered that it could be. The following cases also suggest that title may be lost: Kakraba v. Acquah, unreported judgment of the West African Court of Appeal, delivered on March 13th, 1953; Essien v. Duncan (1956), 2 W.A.L.R. 155; Ohimen v. Adjei (1957), 2 W.A.L.R. 275, at p. 279; Nkum v. Andoh, [1959] G.L.R. 358; Malm v. Lutterodt, [1963] 1 G.L.R. 1, at p. 6. In Dadzie v. Kojo (1940), 6 W.A.C.A. 139, the court suggested that title could not be lost; on appeal this view was challenged, but the Privy Council declined to express an opinion: unreported judgment sub nom. Kojo v. Dadzie, delivered on April 3rd, 1951. Of the other cases cited by Allott, Ackon v. Kotoh (1922), F.Ct. ’22, 9, and Kuma v. Kuma (1940), 6 W.A.C.A. 139, merely decided that in the particular circumstances acquiescence had not occurred, while the Nigerian case Ita v. Asido (1935), 2 W.A.C.A. 339, needs to be read in the same terms in the light of later decisions such as Oshodi v. Imoru (1936), 3 W.A.C.A. 93. Kasunmu & James cite Agbloe II v. Sappor (1947), 12 W.A.C.A. 187, where it was held that an occupier held a licence by acquiescence, but had not acquired title. However, in that case the evidence showed that the requisites of acquiescence were not present in respect of title. The occupier relied on a conveyance which was not executed by the requisite members of the owning family. Since the occupier was himself a member of that family, he cannot have been mistaken as to the true facts. Nigerian cases which could be read to support Ollennu's view are: Oloto v. Williams (1943), 17 N.L.R. 27 (reversed on appeal on a different point (1944), 10 W.A.C.A. 23); Okoh v. Olotu (1953), 20 N.L.R. 123.

page 54 note 1 But see Simm v. Anglo-American Telegraph Co. (1879), 5 Q.B.D. 188, at p. 215, per Cotton, L.J., holding that a mortgagee who received the mortgage under the mistaken belief that title was vested in the mortgagor might be entitled to plead estoppel against the true owner, but would lose this right as soon as the loan was repaid. See also R. Maudsley (1965), 81 L.Q.R. 183, at p. 184, on promissory estoppel.

page 54 note 2 Hunt v. Carew (1649), 21 E.R. 786; Hobbs v. Norton (1682), 23 E.R. 370; Hunsden v. Cheyney (1690), 23 E.R. 703; Savage v. Foster (1722), 88 E.R. 299. In Willmott v. Barber (1880), 15 Ch.D. 96, a decree of specific performance was asked for, but the plaintiff failed to establish acquiescence. The other more modern cases in which such orders were given all arose from promissory estoppel. See, e.g., Dillwyn v. Llewellyn (1862), 45 E.R. 1285. Since common law does not recognise promissory estoppel, only an equitable interest passes, and to perfect this an order to convey the legal interest may be necessary.

page 54 note 3 Woodman, “The formalities and incidents of conveyances in Ghana”, (1967) 4 U.G.L.J. 1, at pp. 14–16.

page 55 note 1 This solution seems to have been approved in The Earl of Oxford's Case (1615), 21 E.R. 485. Today, however, damages are awarded only if an estoppel cannot pass a good title; this may happen if there was an express representation, as in Seton v. Lafone (1886), 18 Q.B.D. 139. Such cases are not relevant to acquiescence, for which a good title in the acquiescing party is essential. Ollennu, J., has sometimes stated that estoppel operates only if the mistaken party cannot be compensated in money: Tetteh v. Doku, [1961] G.L.R. 566; Lartey v. Hausa, [1961] G.L.R. 773; Ollennu, op. cit., 67. However, in no case have damages been awarded, and in a recent case where damages only were claimed, the court held that this remedy was not available: Attafah v. Tawiah (1968), C.C. 25.

page 55 note 2 Cf. the attitude to legislation for the limitation of actions, supra, p. 44, n. 1.

page 56 note 1 Thompson v. Mensah (1957), 3 W.A.L.R. 240, at pp. 247–248.

page 56 note 2 Nigerian customary practice may however include a concept of acquiescence: see Lloyd, P., Yoruba Land Law, London, 1962, native court cases reported at pp. 122, 249, 257; also chap. 12.Google Scholar

page 56 note 3 Dillwyn v. Llewellyn (1862), 45 E.R. 1285. On the effect of promissory estoppel see also the recent cases: Inwards v. Baker, [1965] 2 Q.B. 29; Ward v. Kirkland, [1967] Ch. 194; E.R. Investment Ltd. v. High, [1967] 2 Q.B. 379. See also supra, p. 42, n. 3.

page 56 note 4 Ollennu, op. cit., 123.

page 57 note 1 Land Development (Protection of Purchasers) Act, 1960 (Act 2), applicable in the municipal areas of Accra and Sekondi-Takoradi by virtue of L.I. 118 and L.I. 179 respectively; Farm Lands (Protection) Act, 1962 (Act 107), applicable to most of Ghana outside the Northern and Upper Regions by virtue of L.I. 178. These enactments are more fully analysed in a note in (1969) 6 U.G.L.J., No. 2. See also the State Lands (Accra-Hospital) Instrument, 1964 Decree 1967 (N.L.C.D. 124).

page 57 note 2 E.g., Kwadjoe v. Cudjoe (1930), D.Ct. ’29–’31, 25; Edmund v. Ferguson (1939), 5 W.A.C.A. 113; Lartey v. Hausa, [1961] G.L.R. 773. See also Korley v. Bruce, [1962] 1 G.L.R. 7, at p. 12.

page 57 note 3 Golightly v. Vanderpuye, [1961] G.L.R. 716, at p. 720; Lartey v. Hausa, ibid., at p. 776; Attrams v. Afriyie II, [1962] G.L.R. 283; Amoako Atta II v. Osei Kofi II, [1962] G.L.R. 384; Baabu v. Appiah, unreported judgment of the Court of Appeal, delivered on April 15th, 1967; Hammond v. Odoi, unreported judgment of Apaloo, J.A., in the High Court, Accra, delivered on October 23rd, 1967.

page 57 note 4 Since the Acts apply only when the occupier would be deprived of possession, they cannot apply when all the conditions for estoppel are present. This, it is submitted, answers the criticism of the Acts by Bentsi-Enchill, op. cit., 273, 276, that acquiescence adequately deals with the problem sought to be solved.

page 57 note 5 Cf. Bentham, “Principles of the Civil Code”, Works, Vol. 1, 1843, 328: “The principle of caprice, having no regard to the measure of pains and pleasures, gives all to one of the parties, without caring for the other. The principle of utility, desirous of reducing to the lowest term, an inevitable consequence, weighs the two interests, seeks a method of reconciling them, and prescribes indemnities. It awards the article to that one of the two claimants, who would lose most if his claim were rejected, but subject to the charge of giving to the other a sufficient indemnity”.

page 57 note 6 The Land Development (Protection of Purchasers) Act, 1960 (Act 2), applies only when the mistake arises from a conveyance executed after a certain date, and a building has been erected on the faith of the mistake. The Farm Lands (Protection) Act 1962 (Act 107), applies only when the mistake arises from a conveyance of land to a farmer for purposes of farming executed between certain dates, the land not having been farmed on within the previous eight years, and the farmer has started farming within eight years of the conveyance. Both are subject to geographical limits set out supra, p. 57, n. 1.

page 58 note 1 The experience with English conveyances in Ghana and Nigeria has been similar. The English case-law has provided rules as to the formalities to be complied with, but the courts have had to build up a body of precedent on the effect of documents executed by illiterates, or purporting to be on behalf of customary-law corporations.

page 58 note 2 Cf. the reluctance of the Ghanian courts to allow legislation to modify the customary-law pledge: Woodman, op. cit., 15–18.

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